Freedom of Information Act 2000
	 — 
	Question

Lord Dubs: To ask Her Majesty's Government whether they will consider amending the Freedom of Information Act 2000 to give those individuals about whom information has been requested the right to know the names of individuals or organisations who have made such requests.

Lord Bach: My Lords, the Government have no plans to amend legislation in this way. Disclosure of the names of individuals or organisations making requests about other individuals would have to be considered on a case-by-case basis under the Data Protection Act, just as personal data falling within the scope of a Freedom of Information request would be. However, any individual who is the subject of an FoI request can make a subject access request, an SAR, under Section 7 of the Data Protection Act to find out the recipients of his or her personal data.

Lord Dubs: My Lords, I welcome my noble friend's Answer. It is a lot better than I thought it could possibly be. As a supporter of the Freedom of Information Act, I ask my noble friend whether he is aware that many of us want it to work well but believe that it should work fairly. If investigative journalists are going to have a field day at our expense, maybe we should know who they are.

Lord Bach: I am glad to have pleased my noble friend; I have to say, I do not always do that. In fact, the Freedom of Information Act was drafted so that whenever there is an issue relating to personal data, the Data Protection Act regime applies and acts as the single scheme that considers whether personal data can be processed or disclosed. If the part of the Data Protection Act that I referred to in my original Answer was not as well known as it ought to have been, perhaps this Question and Answer will make the headlines today.

Lord Smith of Clifton: My Lords, I support the noble Lord's Question. Like many of your Lordships, I, too, have been stalked. When I requested information, I could not get it, but I had my own methods. I said, "Why am I being stalked by you?", and the cub reporter said, "We're looking at Lords with Northern Ireland interests". I said, "Well, why is Lord Irvine's name on this?", and he said, "Because his first name's Derry". That's the quality of some of the reporting.

Lord Bach: I remind the noble Lord that requesters, those who request, are required to give their name when making a request. That is a requirement of Section 8 of the Freedom of Information Act. If it is thought that a pseudonym is being used to shield his or her identity, it is possible to avoid the request by considering it vexatious.

Lord Campbell-Savours: My Lords, in the event that an application were to be made under the section that my noble friend referred to, is it still possible for a refusal to be in place—in other words, that the information identifying the person concerned may still not be published?

Lord Bach: Yes, it is possible. The considerations of the Data Protection Act apply, both to finding out who is making a request and to the subject of the request. It is quite possible that the answer would come back, "No, we can't say because of data protection rules", as it is equally possible for those subject to FoI requests to rely on the same defence.

Lord Lawson of Blaby: My Lords, in common, I am sure, with many former Ministers, I frequently get letters from, in my case, the section of the Treasury dealing with this, saying that it has had a freedom of information request about something that occurred during my time as Chancellor and asking whether I have any observations to make. I say, "No, you go ahead, I've nothing to hide". But it will never tell me who has made the request. Will the Minister tell all government departments that they should make it known who has made the request?

Lord Bach: I understand exactly what the noble Lord is saying and, yes, I shall pass that on.

Lord Maxton: My Lords, does my noble friend agree with me that it is now time that we amended the Freedom of Information Act to bring all publicly funded bodies under its remit and that that must include all aspects of the BBC?

Lord Bach: My noble friend will know that in July this year the Government published their response to a public consultation on extending the Freedom of Information Act through a Section 5 order. There is considerable support for extending the Act. Consultation is being undertaken with those bodies that were proposed at this stage for inclusion; namely, academies, the Association of Chief Police Officers; the Financial Ombudsman Service and the Universities and Colleges Admission Service—UCAS. I cannot comment on the BBC.

Baroness Falkner of Margravine: My Lords, we welcome the clarification about the subject access request, but the point of the noble Lord, Lord Lawson, is well made. How extensive is information on the subject access request on government websites and otherwise? I have spent two hours trawling websites and could not find any reference to it whatever.

Lord Bach: Clearly, it is not extensive enough. I seriously hope that, as a result of my noble friend's Question, it will become rather better known.

Baroness Gardner of Parkes: Can the Minister explain to us the timing of that subject access request? If someone applies for information, is an answer given instantly, or is there time for you to make the application? How long does it take for the subject to get an answer? I am interested in the timing of the sequence.

Lord Bach: I cannot really give an exact figure. The subject of a request is given 20 days to respond, unless there are exceptional reasons for not doing so. I cannot answer the noble Baroness's question, which was how long it would take make a request and get an answer under the Data Protection Act, but I shall write to her.

Lord Clark of Windermere: My Lords, as my noble friend is aware, every government department has a number of designated freedom of information officers. Will he ensure that his Answer to this House today is sent to every one of them?

Lord Bach: Yes, I will. My department has overall responsibility for freedom of information policy, and I shall make sure that what my noble friend asks for happens. The Freedom of Information Act is one of the triumphs of this Government. For a Government who are sometimes described as authoritarian, it is unbelievable how much we have opened up to the general public.

Economy: Balance of Payments
	 — 
	Question

Lord Sheldon: To ask Her Majesty's Government what they forecast will be the balance of payments in the first quarter of 2010.

Lord Davies of Oldham: My Lords, the Government do not publish a quarterly forecast for the balance of payments. The latest forecast for the balance of payments was published in the Budget. The forecast for the balance of payments deficit for 2009 is 3.5 per cent of GDP. The Government forecast the current account to be equal to the same proportion of GDP in 2010, at 3.5 per cent.

Lord Sheldon: I thank my noble friend for that reply, but is it not clear that the balance of payments for the last quarter of 2009 will be very good, because of the 15 per cent sales tax and the expected return of the 17.5 per cent in 2010? Since the figures for last quarter of 2009 will be published in the first months of 2010, there will be some satisfaction at the state of the economy. The question remains about the level of sales early next year. What action are the Government considering there?

Lord Davies of Oldham: I am grateful to my noble friend for identifying a trend which is very much in the right direction. It will be appreciated that many aspects of the economy, such as the slowing of the rise in unemployment and the rise in the FTSE index, are indications of the successful implementation of government policies in the past 18 months to two years, since the credit crunch occurred and we entered the biggest recession for a very long time. My noble friend is right that we can look forward to some improved figures for the last quarter. The Government have in place a strategy on the economy, which has been predicted from the Budget position up to 2013.

Lord Peston: My Lords, forecasting the balance of payments is incredibly difficult, because it is the difference between two enormous figures, but unless I misheard my noble friend's Answer on this for 2010, it is ludicrously pessimistic. Did he not say that he thought that it would be well over 3 per cent of GDP? On any analysis—certainly my own—the balance of payments is improving very rapidly, as my noble friend Lord Sheldon points out. It is highly likely that the per cent of GDP and the current account deficit will be below even 2 per cent. I hope that someone in the Treasury is taking note of that.

Lord Davies of Oldham: My noble friend is living proof that economics is not the dismal science that is sometimes suggested, as he takes a more optimistic perspective. The Government are rightly cautious, as we are going through very difficult times indeed. He may be right that the Government are being unduly cautious with regard to the forecast. Certainly, the competitiveness of the British economy is ranked highly in international comment and evaluation, and we compare very favourably indeed with the most advanced economies in the world. Of course, we all know that our fellow citizens are paying a very high price for the recession. Nevertheless, it is beginning to show that the Government's strategy is bearing fruit.

Lord Higgins: In making these forecasts, what assumption is made about the exchange rate?

Lord Davies of Oldham: My Lords, the noble Lord is right to identify the exchange rate as playing an important part in this overall position. Our export earnings are rising and being compared favourably with those of other advanced countries. I do not underestimate the fact that the exchange rate is a very important dimension of that but the noble Lord will surely accept that, against a background of a colossal drop in world trade which has caused such difficulties for all world economies, the British economy is beginning to show some aspects of recovery.

Lord Newby: Does the Minister accept that the health of the financial services sector is a major contributor to our balance of payments and our exports? Could he comment on stories in today's newspapers that the Government are planning to invest another £5 billion in Lloyds Banking Group?

Lord Davies of Oldham: My Lords, that is a pretty detailed question. I am briefed up to the eyes on employment statistics as well as on the broader economy, but I do not have an immediate comment to make on that question, except that the noble Lord will have heard my noble friend Lord Myners talk yesterday about how active he was on the banks. He is spending great time on the critical relationship between the necessary support for the banks that the Government have provided and the importance of the taxpayer getting due reward in due course for the colossal sums that have been invested in support of the financial sector.

Lord Lea of Crondall: My Lords, would my noble friend not agree that the upside of the competitive exchange rate—it is now something like 93p against the euro—is that it is good for exports? Is he aware that some of us view with equanimity the possibility that the pound might eventually settle at near parity with the euro?

Lord Davies of Oldham: My noble friend will not expect me to share such equanimity from the Dispatch Box. Of course, the exchange rate plays a significant part. It will have been noted that the pound rose against the dollar yesterday; against the euro, of course, it did not, as my noble friend has indicated.
	However, we must make progress on the balance of payments. We are currently operating at a 3.5 per cent deficit on GDP in the worst recession since the war. The deficit in 1989, under another Administration, was 4.9 per cent.

Police: DNA Database
	 — 
	Question

Lord Naseby: To ask Her Majesty's Government how many innocent people are on the police national DNA database; and when they will be removed.

Lord West of Spithead: My Lords, as at 24 April 2009 there were some 4.5 million persons on the national DNA database, of whom some 986,000 had no current conviction or caution record held on the police national computer. This included those convicted but whose police national computer record has been deleted, cases where proceedings are ongoing and those with no convictions.
	We are currently considering DNA retention policy in our response to the European Court judgment.

Lord Naseby: My Lords, are we to understand that close on a million innocent citizens have their data on this database? Do the Government not understand that this is unacceptable in terms of civil liberties, privacy and general good management of society? What time span are the Government working to on the European ruling to ensure that innocent people are taken off this database within, say, at least six months?

Lord West of Spithead: My Lords, as I said in my initial response, not all of those people are necessarily innocent; a large number are people whose convictions have been removed from the police national computer. This happened because, prior to 2006, things were weeded out from that computer. The number is therefore less, but I take the overall point.
	We must clearly strike a sensible balance between the huge value of DNA and what it has done in protecting our society, and the interests of the individual. There is no doubt whatever that the results of holding DNA have been amazing. Over four and a half years, about 200,000 profiles were retained. Of those, 8,500 matched crime scenes involving 14,000 offences including 114 murders, 55 attempted murders, 116 rapes, 68 other sexual offences, 119 aggravated burglaries and 127 offences involving controlled drugs.
	We clearly have a responsibility to protect society and we must have a balance. We have therefore gone out with a consultation and 503 people have responded. We are looking at the results, and will then make a decision on how we should move forward.

Lord Mackenzie of Framwellgate: My Lords, could my noble friend, a simple sailor, explain to a simple police officer exactly what a totally innocent person has to fear from the retention of their DNA on the database? Also, how many people, having been arrested but not convicted of an offence, have subsequently been proved to be guilty of very serious crimes committed either before or after that arrest as a direct result of the retention of their DNA?

Lord West of Spithead: My Lords, I thank my noble friend for his interjection. It is a very interesting point. I quote the noble Earl, Lord Ferrers, who is not here, when he said in a previous debate:
	"However, if the police keep a person's DNA, what does that matter unless they subsequently commit a crime? If they commit a crime, whether it is a terrorist crime or whatever, the DNA is available to help to find them. If they have not committed a crime, they have nothing to worry about. The idea of the police hanging on to those samples sounds terribly intrusive, but, unless a person commits a crime, the samples will not be of any use".—[Official Report, 9/10/08; cols. 394-95.]
	That is, no one will ever know. I have a certain sympathy with what the noble Earl said on that occasion, but there is a responsibility to the individual. That is why we are looking at this more closely. There is no doubt at all, as my noble friend has said, that there are a very large number of people who have been released and not charged. I do not know the exact number but I can give example after example. One person was arrested for suspected illegal entry because he jumped from the back of a van at a motorway service station. He was released without charge, his DNA was taken and put on the National DNA Database. Some two and a half or three years later it was matched against the crime scene of a gang rape where a woman was held down by a group of people. The victim could not recognise any of them. This man was caught and convicted through his DNA. This has real relevance and we have to take all those factors into account.

Baroness Miller of Chilthorne Domer: My Lords, at the moment an innocent person has a complete right to ask a chief constable to take them off the DNA database, but at the same time that chief constable has discretion whether or not to do so and when to do so. In light of the European Court judgment, will the Government issue new guidance to chief constables to instruct them to do so rapidly?

Lord West of Spithead: My Lords, Keeping the Right People on the DNA Database, the paper that we put out for consultation, lists our plans. One of the issues is to do with the destruction of profiles. That has been rather complex and difficult, and we will have to lay out very clearly the criteria for destruction and exactly how it is to be done. In the past that has not been as clear and good as it should be; it is something that we will have to rectify.

Lord Wright of Richmond: My Lords, I declare what is probably the view of a very small minority: I would have no objection whatever to having my DNA details on the database for ever, in the hope that it might, in certain circumstances, clear me of a totally false charge.

Lord West of Spithead: My Lords, the noble Lord raises a very good point, which I should probably have mentioned. There are a number of cases where people have, I am afraid, been wrongfully imprisoned and the fact that we have their DNA has finally allowed them to be released. That is a very important point.

Lord Dholakia: My Lords, why is it that a disproportionate number of black and Asian minority people are on the DNA list?

Lord West of Spithead: My Lords, that is a very interesting point. Looking at those on the DNA database, 77.7 per cent are white, 7 per cent are black, 5.4 per cent are Asian and 3.2 per cent are from other ethnic-appearance groups. We have looked at this in some detail because it is worrying. Our initial look at this makes us feel that this is to do with the fact that in the criminal justice system as a whole there is overrepresentation of black people. It is not because of a problem with the DNA database itself.

Baroness Neville-Jones: My Lords, in December the European Court of Human Rights declared that the retention of innocent people's profiles was illegal. It is outside the law now to do that. Since then 300,000 profiles have been added to the list. How many of those people are innocent and how many of them have been added since July? We are running at a rate of roughly 40,000 a month. Does the Minister not accept that it is now time to change the system and that the time for consultation should come to an end?

Lord West of Spithead: My Lords, the judgment in fact said that it was wrong for us to keep them indefinitely. It did not say that it was wrong to take them. It is an issue of timing and how long these should be held for. I cannot give details of the exact numbers but I shall get back in writing on that. We are looking at this. There is a balance here. We have to weigh up the risk to our people and the very positive results in terms of our safety and justice where horrendous crimes have been committed, which DNA has helped to solve, against safeguarding the rights of the individual. That is what we intend doing. We shall not do it in a great rush. We have now consulted and will shortly come out with our proposals, based roughly around the figures we have given. I know that the Scots have come out with a different figure but all my analysis of that shows that it is not based on any proper analysis at all, so I am quite interested in how they arrived at their figure. However, we have a very clear view of where we are going on this.

Parliament: Reporting of Proceedings
	 — 
	Question

Lord Taverne: To ask Her Majesty's Government what steps they are taking to preserve the right of newspapers to report proceedings in Parliament.

Lord Bach: My Lords, the ability to report proceedings in Parliament remains unaffected by recent events. As my right honourable friend the Prime Minister said yesterday in another place:
	"The Justice Secretary has talked to the parties concerned and is looking into this issue".
	He went on to say that he hoped that,
	"progress can be made ... to clear up what is an unfortunate area of the law".—[Official Report, Commons, 14/10/09; col. 294.]

Lord Taverne: My Lords, I welcome the reaction of all parties, the Prime Minister and the Government, to the questions that arose yesterday out of Mr Paul Farrelly's Question to the Commons. However, the threat still exists. These so-called super-injunctions are becoming more common and can be very oppressive. Will the Government take this opportunity to make it absolutely clear that similar actions to those of Carter-Ruck would be a clear breach of Article IX of the 1688 Bill of Rights, which states that,
	"the Freedom of Speech and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament"?
	Will the Government also take note of the remarks made yesterday by Lord Justice Laws on the law of libel and set up an urgent review of whether what he called the delicate balance between the right of reputation and the right to free expression has not perhaps tilted too far in favour of the former? Will they also look at whether so-called libel tourism should not be restrained?

Lord Bach: We are looking at all the matters that the noble Lord raises. Of course, the courts have always had the right to restrain publication that would frustrate the very purpose of their orders, but it seems that they have used that power more during the past few years than previously. The Government will not seek to intervene in any way in what a newspaper or magazine chooses to publish. The press must abide by the law just as we all must. However, the issues that the noble Lord raises are very live ones in the Ministry of Justice. My right honourable friend the Justice Secretary is seeing Mr Speaker this afternoon, a senior official from my department is meeting the lawyers of the major newspapers today and the judiciary is being consulted.

Lord Howarth of Newport: My Lords, will my noble friend take this opportunity not only to assure newspaper editors that they will have a continuing right to report proceedings in Parliament but to put it to them that they have a responsibility to extend their typical coverage of Parliament beyond what the sketch writers choose to describe or the latest story of political embarrassment? After all, how are we to have an informed and responsible democracy if the print media fail to mediate the proceedings of Parliament in a reasonably broad, balanced and serious way?

Lord Bach: My noble friend makes an excellent point, which will win a lot of support around the House. I very much suspect that my right honourable friend will make that point to the newspapers in the same way as he makes his other points.

Lord McNally: My Lords, is it not ironic that tomorrow we celebrate the opening of the Supreme Court, which underlines the separation of powers? Is it not time to remind the judiciary that the separation of powers is a two-way street and that judges should not be lured into imposing injunctions that impinge on parliamentary privilege? The letter sent by Carter-Ruck to Mr Speaker is far from penitent. Would this matter not be settled far more quickly if Mr Speaker summoned Carter-Ruck to the Bar of the House?

Lord Bach: The only answer that I will give to the noble Lord is that I look forward to seeing him at the opening of the Supreme Court tomorrow.

Lord Campbell of Alloway: Is there not an absolute privilege for the press to report proceedings in Parliament, so long as they do not comment on them?

Lord Bach: There is absolute privilege; I am hardly surprised that the noble Lord is correct about that. Proceedings in Parliament are subject to the absolute privilege accorded by Article IX of the Bill of Rights. That article provides that proceedings in Parliament ought not to be impeached or questioned in any court. As I understand it, that means that we in this House and those in another place receive absolute protection from court proceedings for things done while engaged in parliamentary duties. There is of course the principle of qualified privilege as well, which means that in the reporting of proceedings material can be produced provided that it is fairly reported. In particular, reports that were motivated by malice would not be protected by the privilege.

Lord Foulkes of Cumnock: My Lords, further to the point raised by my noble friend Lord Howarth about the responsibility of reporting proceedings of this Parliament and, indeed, other matters accurately, does my noble friend agree that the current Press Complaints Commission is toothless and useless? Would he consider legislation to replace it with a statutory body?

Lord Bach: That is a very big question, which I am not prepared to answer.

Lord Goodhart: My Lords, will the Government consider looking more thoroughly at the libel laws? At present, they seem to be making the United Kingdom, particularly the English courts, a centre for worldwide applications to secure substantial damages by people who think that they have been libelled. Should we not try to get rid of that?

Lord Bach: There are some important considerations around the law of defamation and libel at present, particularly in relation to costs. We are aware that the costs associated with defamation proceedings have what has been described as a chilling effect, particularly where the impact of success fees under conditional fee agreements is taken into account. The question of what might properly be done to address cost issues in relation to defamation remains under consideration by the Government. These issues, as the noble Lord will know better than most, form part of the important consideration that Lord Justice Jackson is making on costs in civil proceedings generally. His final report is expected at the end of the year and will be considered with interest by all parties.

Administration and Works Committee
	 — 
	Membership Motion

Moved By The Chairman of Committees
	That the Lord Bishop of Exeter be appointed a member of the Select Committee.
	Motion agreed.

Autism Bill
	 — 
	Order of Commitment Discharged

Moved By Baroness Pitkeathley
	That the order of commitment be discharged.

Baroness Pitkeathley: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.
	Motion agreed.

Apprenticeships, Skills, Children and Learning Bill

Main Bill Page
	Copy of the Bill
	Explainatory Notes
	Amendments
	8th Report Delegated Powers Committee
	14 Report Joint Committee on Human Rights

Committee (8th Day)

Clause 88 : Encouragement of education and training for persons aged 19 or over and others subject to adult detention
	Amendment 198
	 Moved by Baroness Sharp of Guildford
	198: Clause 88, page 59, leave out lines 12 to 23 and insert—
	"(a) encourage individuals to undergo post-19 education and training;
	(b) encourage employers to participate in the provision of post-19 education and training;
	(c) encourage employers to contribute to the costs of post-19 education and training;
	(d) monitor and report to the Secretary of State and Parliament on levels of participation in post-19 education and training"

Baroness Sharp of Guildford: My Lords, I shall speak also to Amendments 213A and 213B. They are separate, as was the case on more than one occasion yesterday. I shall first speak to Amendment 198 and then address the others, which raise different issues, but I thought it best that they remained grouped together, partly for the sake of time.
	Clause 88 sets out the duty of the chief executive officer of the Skills Funding Agency to encourage post-19 education. There is an ambiguity in the Bill. Last night when we were addressing Clause 84, I spoke about what is reasonable and proper. Both clauses have ambiguous headings. Clause 88, which refers to Clause 84, is entitled:
	"Encouragement of education and training for persons aged 19 or over and others subject to adult detention".
	Clause 84 is entitled:
	"Education and training for persons aged 19 or over and others subject to adult detention".
	The noble Lord, Lord Lucas, said my amendments to Clause 84 were inappropriate because he did not think that the issue of what is proper and reasonable necessarily applied to those in detention. However, Clause 84 states that the chief executive must promote the provision of reasonable facilities for,
	"education suitable to the requirements of ... persons who are aged 19 or over, other than persons aged under 25 who are subject to learning difficulty assessment, and ... persons who are subject to adult detention".
	I take it, therefore, that that applies to all adults. Perhaps the Minister could clarify this when he replies.
	Exactly the same wording applies in Clause 88, which is about encouraging education and training and applies to all those referred to in Clause 84(1)(a) within the chief executive's remit. I take it that that applies to all those who are over 19, other than those who have a learning difficulty assessment, as well as those who are in adult detention. Therefore, it is not just related to those who are in adult detention, as the noble Lord, Lord Lucas, implied in relation to my earlier amendments. I was a bit taken aback and, in the light of that, felt that my amendments were inappropriate. However, after thinking about it, it seems to me that the amendment actually applies to all those over 19. We are looking at the issue of the "encouragement" of education and training for all those who are over 19.
	This amendment comes from the National Institute of Adult Continuing Education. In general, as a society we want to encourage this ethos of lifelong learning, as the amendment sets out. There are all kinds of reasons as to why this is so: in lifelong learning when people stay in education, they remain happier, healthier and better socially adjusted. They contribute more to society as volunteers. There is a great deal of evidence for that among those who keep up their studies in one form or another, whether they are younger in terms of CPD and training or later on in adult life when they participate in adult learning of one sort or another.
	In the global society in which we now operate, we know also that we need to encourage people to maintain and upgrade their competencies and skills; and, on occasions, to switch careers and move into new areas. The Government have been anxious to emphasise that there are very good economic reasons for investing in lifelong learning. It is in the forefront of the Government's skills agenda.
	The NIACE report Learning Through Life that I mentioned yesterday recognises that responsibility for learning through life should be shared between the individual, the employer and the Government—all should make contributions. We discussed yesterday NIACE's idea that there should be the equivalent of what some people call a learning bank. The City and Guilds institute has also proposed ideas for what might be termed a learning bank. I also raised yesterday the concept of individual learning accounts and whether the Government were still backing some help for the individual, perhaps to encourage them to continue in lifelong learning. I was very encouraged by the Minister's reply that these ideas are still very much on track. I hope that they will develop into something like a learning bank, to which the individual, the employer and the Government can all contribute. People will have a certain number of credit hours in the bank that they can take for their learning—this will encourage individual learning.
	The amendment seeks to take the spirit of encouraging lifelong learning and set it into Clause 88. The wording of Clause 88 is lifted straight from the Learning and Skills Act 2000. We propose a reformulation of the clause to capture more of the spirit of lifelong learning. We want the chief executive officer to be the champion of lifelong learning and to encourage individuals and employers to participate and employers to contribute. The new element that we are introducing is paragraph (d), which ensures better scrutiny of what the chief executive officer of the Skills Funding Agency achieves.
	The remit letter to the LSC required it to increase and widen participation in learning, and to improve levels of achievement and retention of adult basic skills. Both requirements had quantitative targets attached, yet because of the reasonable and proper distinction that I was talking about yesterday that was written into the Learning and Skills Act and repeated in this one, the LSC has always been able to evade the broader remit of promoting lifelong learning and concentrate on the narrower one of promoting basic skills—and even there, it has concentrated on 16 to 19 year-olds rather than adults. The notion put forward in paragraph (d) of the amendment is that scrutiny should be not only by the Secretary of State, but also by Parliament. This would keep the wider remit in the public arena. For that reason, it would be a very good idea if, in addition to the CEO acting as a champion for lifelong learning, there was greater scrutiny of what was achieved by the chief executive officer.
	Amendments 213A and 213B address a totally different issue. However, they pick up on the issue that I raised yesterday with the Minister about the letter from the noble Lord, Lord Mandelson, to Jim Brathwaite at SEEDA, and the degree to which regional development agencies are now to play a substantive role in developing local skills strategies. Until the letter from the noble Lord, Lord Mandelson, the position was that, with the exclusion of Greater London—one can see from Clause 110 that Greater London is excluded from the general SFA remit—local authorities were working with sub-regional groups to develop their strategies. In many senses, this is very sensible. In the south-east region, to which I belong, the issues facing employment and skills within, say, the Thanet area are totally different from those in the Guildford area, and in the Oxford area they are very different from those that we face in the Guildford area. Therefore, it seems to me very sensible to look at skills strategies within sub-regional groups.
	That is reinforced by another Bill that has been through this House this year—the Local Democracy, Economic Development and Construction Bill. It was not a Bill that I think the House liked very much; nevertheless I think that there are repercussions regarding this issue. Clause 85 of that Bill encouraged local authorities to come together, as in London, to form statutory economic prosperity boards, and Clause 118 encouraged local authorities to formulate multiple area agreements listing partner authorities. Interestingly enough, within that remit Jobcentre Plus was mentioned as a partner authority but the LSC and skills issues were not mentioned as partner authorities.
	On top of that, in the 2009 Budget, Greater Manchester and Leeds were both designated as core cities, presumably with the idea that they, like Greater London, would create economic prosperity boards analogous to the London Skills and Employment Board, which has powers over adult SFA funding. Therefore, just as in London, Manchester and Leeds would effectively opt out of the SFA remit and do their own thing.
	Therefore, the questions raised by Amendments 213A and 213B are, first: how powerful will the RDAs be in developing skills strategies? We on these Benches have some scepticism about the extent to which RDAs should run the local skills strategies, partly because we think that the RDAs are too big and, as I explained a little earlier, the sub-regional groupings are in this sense more appropriate. As I said, we prefer the notion of local authorities working together. Therefore, Amendment 213B questions whether we want to have the RDAs playing a substantive role in this.
	The other question is: how far is this Bill compatible with the Local Democracy, Economic Development and Construction Act, which envisages these multiple area agreements? How far do the Government envisage areas such as Manchester and Leeds following along the lines of Greater London and taking over from the SFA adult skills policies and funding within their areas?
	Those are the three substantive questions that I put to the Minister in relation to the developments that are taking place, and they are, as noble Lords will recognise, totally different issues from those that I raised under Amendment 198, which is all about encouraging lifelong learning. I beg to move.

Lord De Mauley: My Lords, we returned after a two and a half month Summer Recess to find that a change of government department in charge of the Bill has led to a dramatic change of direction. Instead of a central operation, we find that regional development agencies, and thus a regional strategy, will now be the key focus for assessing and managing demands. We share the scepticism of the noble Baroness, Lady Sharp, concerning the role of the RDAs here, so I look forward to the Minister's explanation of why such a change in policy and direction can have been allowed to occur without any information at all being provided to the Committee charged with scrutiny of the Bill. I understand that the Government consider that no amendments are needed to the legislation to achieve that. Nevertheless, the Minister must admit that this is a fairly dramatic change in policy, and we can legitimately demand a detailed explanation of changes behind the legislative framework.
	Noble Lords will be aware that we on these Benches have always preferred a sectoral approach. We continue to intend to enshrine the sector skills councils into legislation and put that in the Bill. We stand by that policy and are concerned that we in Committee are not alone in being ignored by the Government. Businesses have not been consulted regarding the Government's change in approach either. I very much hope that the Minister can provide a full explanation.

Lord Young of Norwood Green: In our view the proposals in the Bill will enhance the role of local authorities in identifying and meeting local skills needs. The transfer of responsibilities to local authorities of 16 to 19 funding will of itself enhance their position in skills locally and regionally.
	Local authorities will also play a key role in the development and agreement of skills strategies at a regional level. We intend to give regional development agencies responsibility for developing a skills strategy for their region which the Skills Funding Agency will be expected to deliver. In developing its skills strategy the RDA will be required to take account of the national priorities identified by the UK Commission for Employment and Skills and sector skills councils—to reassure the noble Lord, Lord De Mauley, that we are not ignoring the vital role of sector skills councils—as well as the skill requirements of local areas and any sub-regional multi-area agreement partnerships or employment and skills boards.
	The regional skills strategy will form part of the single integrated regional strategy which will be signed off by the local authority leader boards, thus making sure that local authority needs are fully reflected. It is not a question of the RDAs developing in isolation a regional skills strategy which they then impose on local authorities. It is a process of them working together. They will be gathering information from local authorities and will consult employers, reflecting two sides of the equation. We see it as a positive development, not one that undermines the role of the sub-regional group, which I agree with the noble Baroness, Lady Sharp, also has a key role to play.
	These proposals reinforce the key principles of the demand-led system, with the RDAs and local authorities articulating the skills requirements within their regions and the Skills Funding Agency ensuring that this new system operates effectively, so that individual learners and employers are able to access the courses of their choice.
	Amendment 198 would alter the scope of Clause 88. Although I recognise the amendment's positive intention, some of the detail in this clause is important. First, by removing all references to Section 84(1), this amendment undermines the very clear separation of responsibilities that we are seeking to put in place between local authorities and the Skills Funding Agency. Secondly, it would have a number of unintended consequences, such as removing 18 year-olds subject to adult detention from the scope of the duty to promote participation. I should not have thought the Committee would want to do that in the light of previous remarks on adult detention. Thirdly, on parliamentary accountability, I can reassure the Committee that the requirement in Schedule 4 for the chief executive to produce an annual report and for the Secretary of State to lay this before Parliament is intended to ensure that robust monitoring and reporting takes place.
	Before concluding, I want to address some of the questions raised by the noble Baroness, Lady Sharp, and the noble Lord, Lord De Mauley—such as whether Clause 88 applies to all adults over 19, to which the answer is unequivocally yes.

Baroness Sharp of Guildford: Does Clause 84 also do that? Reading it logically, if you have the "and" instead of the "or", it applies to persons who are aged 19 and over "and" persons who are subject to adult detention. If it just read, "and who are subject to adult detention" it would be only the one. Do Clauses 84 and 88 apply to all adults over 19, including those who are in detention?

Lord Young of Norwood Green: I must check carefully before I respond. I am looking to my team to ensure that Clauses 84 and 88 apply to all adults, including those in detention. I think that I am getting a nod.
	I dealt with the aspiration, which we share, for lifelong learning. The noble Baroness referred to a learning bank; I referred to a skills account, but the destination and the intention is the same. We share her enthusiasm to ensure that people do not see learning as a finite process. We know that there is great benefit both to individuals and to society as a whole if the concept of lifelong learning is embraced. As I said yesterday, we are investing a significant amount of money in adult education.
	On the question of Greater Manchester and Leeds having a similar role to London, no decision has yet been taken on funding. I have gone over the role of the RDAs. I stress that we do not see RDAs as imposing their regional skills strategy. They will be formulating that regional skills strategy listening to local authorities and employers, via sector skills councils—to address the concern expressed by the noble Lord, Lord De Mauley. Those bodies are a vital part of ensuring that, as we develop—

Lord De Mauley: My Lords, I am grateful to the Minister, but, despite his fond hope, I am not much reassured. He seems to be telling me that more cooks will be involved in spoiling the broth. It is bad enough already, but that smacks of further confusion and muddle. I really asked what changes are needed behind the legislative framework to achieve what the Government are trying to do.

Lord Young of Norwood Green: I do not think that we need any more legislative changes. We believe that the people required to develop the regional skills strategy are located in the regional development authorities. We have consulted and written to the CBI, the British Chambers of Commerce, the Alliance of Sector Skills Councils and the TUC. We are discussing the case with them as we speak, so there is no question of there not being consultation.

Lord Elton: My Lords, before the Minister leaves that point—

Lord Young of Norwood Green: I was not actually leaving that point. I am sorry, I did not mean to be discourteous, but I had not finished developing that point. I hear what the noble Lord, Lord De Mauley, says, when he talks about too many cooks in spoiling the broth. We must get the balance right in the provision of skills. People do not stay conveniently in one local authority. Hence, we have already agreed the need for sub-regional groups; no one has disputed that. It is now a question of ensuring that in the region as a whole we have the right mix of skills. Are the RDAs doing that in splendid isolation? No, they are not, they are required to consult with the bodies that I, and the noble Baroness, Lady Sharp, identified.
	I know that we will be accused of complexity and of adding layers of bureaucracy, but the proof of this particular pudding will be in the eating. These things were always complex. It is an illusion that in the past everything was simple. It is not like that. However, I agree that we have to ensure that what we are creating will not be needlessly complicated. We believe that the role of RDAs, which I have been describing this morning, will involve being responsive to local authorities and taking into account the views of sub-regional groups, employers, as represented on the sector skills councils, and other regional bodies.

Lord Elton: When the Minister originally described the role of the RDA to my noble friend, I thought I heard him say that, at the end of the process, the RDA would hand the policy to the local authority, which would sign it off. If that is what he said, then, to me, "signing off" means—I may be wrong—(a) accepting, (b) being responsible for, and (c) having the last word. Is that the case? Will the local authority be able to prevail against the RDA if it has a difference of opinion? I think that that is what my noble friend wants to know.

Lord Young of Norwood Green: The noble Lord is right that that is what I said. I shall repeat it to be absolutely clear. The regional skills strategy will form part of the single integrated regional strategy that will be signed off by the local authority leader boards, thus making sure that local authority needs are fully reflected. This is consistent with the Local Democracy, Economic Development and Construction Bill currently going through the House—what a wonderful mouthful that is. The noble Lord is right. I hope I have conveyed the fact that this will not be imposed but will be done together with local authorities. Let us hope that it works out that way in practice.

Baroness Sharp of Guildford: I am grateful to the Minister for responding to this amendment. In relation to paragraph (a) in Amendment 198, if the only objection is that it does not refer to those in adult detention, I would point out to him that encouraging individuals to undergo post-19 education and training comprehends all individuals whether they are in detention or not. I do not think it can be said that it excludes those in detention.
	Members of the Bill team seem to be a little uncertain about whether Clauses 84 and 88—particularly Clause 84—comprehend those outside adult detention. The wording is ambiguous. Yesterday the noble Lord, Lord Lucas, took my amendments to apply only to those who are in adult detention, and I was a little taken aback by it. Clause 84's heading—
	"Education and training for persons aged 19 or over and others subject to adult detention"—
	is ambiguous, and if we are uncertain, the greater public might be even more uncertain.
	The Minister did not respond to my suggestion that there would be an advantage in monitoring whether the chief executive of the Skills Funding Agency was fulfilling this remit to encourage individuals and employers to encourage participation in post-19 education. If this remit is created, it is worth checking on from time to time.
	On the other two amendments and the whole issue of regional development agencies and their role, the Minister claims first that the situation is basically much the same as before the Mandelson letter. Yet the letter itself says:
	"I can confirm that I am considering the case for modifying the existing plans for the creation of the Skills Funding Agency ... to allow the existing skills landscape to be simplified by making the RDAs the single body with responsibility for producing the regional skills strategy".

Lord Young of Norwood Green: I want to be helpful before the noble Baroness sits down. First, on accountability and monitoring, I have said that I can reassure the Committee that the requirement in Schedule 4 for the chief executive to produce an annual report and for the Secretary of State to lay this before Parliament is intended to ensure robust monitoring and reporting. We will certainly take into account the noble Baroness's point that the report ought to include adult education.
	Obviously we do not want to introduce ambiguity and we will check to ensure that there is no unintended ambiguity in Clauses 84 and 88.
	We have been around the track a number of times on the role of the RDAs. I have given clear and explicit assurances on the relationship with the local authority. The noble Baroness's concern is, as always, to ensure that the voice, needs and requirements of local authorities are reflected. I would have hoped that assuring her that the local authority leader boards will be able to sign-off any integrated regional strategy would be a reasonable and sufficient guarantee and that, in the light of the assurances that I have given, she will feel able to withdraw her amendment.

Lord Elton: May I revert quickly to the question that I raised? I understand that there will be a considerable number of local authorities in every region. The Minister has told us that each local authority will have the authority to change the RDA policy, because each of them will sign it off. That being the case, it is difficult to see how a consistent regional policy can be developed where there are differences. Many colleges deal with a number of regional authorities anyway, so it is impossible to see how this thing will work in practice.

Lord Young of Norwood Green: With respect to the noble Lord, Lord Elton, again there is the impression that this will somehow be a handed-down process. It will not work that way. The RDAs will have a duty to consult the local authorities. It is in their interests to ensure that the skill requirements of local authorities are reflected in any regional skills strategy. I do not understand what the motivation would be to do anything else but that. As the noble Lord rightly says, they have a vested interest in ensuring that there is a sign-off process, so it would be rather self-defeating to develop a skills strategy in isolation and then seek to impose that when the very people whom they are seeking to impose it on in effect have a veto. I stress again that this is a process in which people work together co-operatively to ensure that they develop a regional skills strategy that genuinely reflects the requirements of local authorities, employers and learners across the region. Again, the proof of this particular pudding will be in the eating.

Baroness Sharp of Guildford: I am grateful to the Minister for attempting to clarify these issues, but I am still increasingly sceptical. Let me quote again from the letter, which says very firmly that the RDAs will be:
	"the single body with responsibility for producing the regional skills strategy".
	And subsequently it goes on to say:
	"Under this scenario, RDAs would be assigned the lead role in identifying as part of their wider responsibilities for regional economic development, demand-side needs for skills in their regions. These needs will be expressed in a regional skills strategy, led by the RDA, which will constitute an investment plan which would become binding on the Skills Funding Agency".
	That is new and it is not in the Bill. There are many questions for us to ponder on this, but in the mean time, I beg leave to withdraw the amendment.
	Amendment 198 withdrawn.
	Clause 88 agreed.
	Clause 89 : Duty to secure availability of apprenticeship places
	Amendment 199
	 Moved by Viscount Eccles
	199: Clause 89, page 59, line 27, leave out from "to" to end of line 28 and insert "maximise the number of apprenticeship places available for as many persons as possible—"

Viscount Eccles: My Lords, this is a probing amendment. As it stands, the clause lays a duty on the chief executive,
	"to secure that apprenticeship places are available in sufficient number and variety for there to be suitable apprenticeship places available for all persons—
	(a) who have elected under section 90 for the apprenticeship scheme, and
	(b) for whom places have not already been made available under the scheme".
	This seems to be a severe duty. How long is a piece of string? The more successful the apprenticeship schemes are, the greater the number of people who will apply. If, as we have been told, this is a demand-led affair, there must be a question as to whether the chief executive is being given a realistic duty to make,
	"places available for all persons".
	In the eyes of Parliament, the duty will not be that of the chief executive but of the Secretary of State, and there is no escaping that. When accountability is asked for, while certainly a Select Committee might wish to see the chief executive, Parliament will ask questions about the annual report, to which the Minister has referred, of the Secretary of State. My amendment seeks to modify the duty so that it maximises,
	"the number of apprenticeship places available for as many persons as possible".
	We all agree that we wish to see many people going through apprenticeship courses and we hope that the demand for them is such that it is possible to satisfy everyone who applies. However, if we take into account the Minister's remarks yesterday about focus and priorities and how there is not the money for everything, it may not be possible. I hesitate over whether it is right to lay a duty on the chief executive and thus on the Secretary of State that will be difficult or impossible to fulfil. In my view, that is not good legislation. What evidence does the Minister have that this duty is in truth achievable? I beg to move.

Lord Rix: I rise to speak to Amendment 201. Due to consultations that took place during the Recess, I believe that the Minister will be able once again to give the Committee clarification and assurances regarding disproportionate expenditure. I look forward to hearing those assurances.

Lord Layard: The proposal set out in these clauses to introduce the entitlement to an apprenticeship for every young person qualified for it is one of the most important policies being introduced in this Parliament in terms of raising the productivity of our workforce and equality in our society. It is incredibly important that it should be achieved. The greatest problem will be finding the number of places from employers for all those people who want places and who are qualified for them. We know that there is already an excess demand for places and so this is a massive task. It is clear that we will not achieve this unless some money is given to the employer who provides a place. At present the normal arrangement is for all the money for an apprenticeship to go to the training provider, who then finds the employer; the employer pays the wage but gets none of the money, no financial support, not even for the time that the apprentice is spending away from the workplace. This is very different from the practice in most countries which operate the most successful apprenticeship systems. It is clear that we will not get all the places we need unless we find some way of channelling some money to employers.
	There are various possibilities. There is the one proposed in our amendment that there should be a fixed sum for every apprentice taken on. One could, alternatively, imagine a limited version of that where money was given only for each extra apprenticeship place provided by an employer; this would minimise the deadweight involved in paying for places that already exist. Or one could imagine a third possibility where any employer who took on an apprentice could ask for and receive the existing money that now goes to the training provider, provided the employer made the necessary arrangements to discharge the responsibilities involved. Even that would be a major step forward towards involving employers more directly than they are currently involved. My colleagues and I strongly urge the Government to pursue one or other of these steps; otherwise it will be impossible to deliver the entitlement. I apologise on behalf of my co-proposers, who wanted to be here but are not able to attend and send their regrets.
	I should like to comment on what was said by the noble Viscount, Lord Eccles, because to accept the possibility that we do not discharge this entitlement is just not on; we have to do it. We have to use all the resources at our command, which includes not only the energy of the National Apprenticeship Service and its approach to employers, but it will have to involve local authorities in a profound way in relating more closely to their employers and impressing on them the importance of this entitlement for the local economy. We should not contemplate not achieving this but should have regard to the fact that we will not achieve it unless we involve employers more closely, not only organisationally but financially.

Baroness Howe of Idlicote: My Lords, I support, particularly, Amendment 202 in the name of the noble Lord, Lord Layard, because it is absolutely essential. All the evidence we have shows that we are falling behind other countries and that we need to upskill tremendously in the whole area of apprenticeships. Indeed, the Government have recognised that and have done a great deal already to move in that direction. But not to disadvantage employers at a time like this is equally important. The only query I have is that the amendment refers to an apprenticeship place to a person aged under 19. The noble Lord, Lord Rix, who is no longer in his place, is concerned that we might also be talking about people with learning difficulties—the noble Lord is now back—and suggests that the limit should perhaps be extended up to the age of 25 for such people. I raise that matter as a particular question.
	Again going back to all the points raised by the Minister in support of lifelong learning—the noble Baroness, Lady Blackstone, also has added her name to the amendment—the main point I am trying to make is that everyone has been talking about what Lord Dearing did in the past and how he tried to move the whole country in this direction. I would have thought it would have been ideal to put some emphasis on, and some resources into, this direction at this time, and rather more than is already planned.

Baroness Walmsley: My Lords, we on these Benches support the amendment of the noble Lord, Lord Layard. I think he put "under 19" in the amendment because it is important that we increase the number of apprenticeships among 16 and 17 year-olds. I believe that currently only 3.8 per cent of all 16 year-olds and 6.3 per cent of 17 year-olds are on level 2 or level 3 apprenticeship in England.
	There is a precedent for what the noble Lord is suggesting. A recent report by the CfBT Education Trust called Lessons from History: Increasing the Number of 16 and 17 Year Olds in Education and Training points out that offering wage subsidies to encourage employers to take on young apprentices during a recession actually works. Between 1979 and 1983 the Training for Skills programme helped 57,000 16 to 18 year-olds to obtain an employer-based apprenticeship. It is clear from this that it can and should be done if we are to achieve what I think the whole House wants to achieve. We hope that the Government will look kindly on the noble Lord's amendment.

Lord Cotter: I follow my noble friend in supporting what the noble Lord, Lord Layard, said a moment ago. My interest in the House stems from my interest in small businesses. I have been in small business all my life. I am reassured that we are still raising the issue of exactly how to see that there will be enough apprenticeship opportunities in this country and talking about how this could be funded. That is important for the small business community, and is such an important aspect of apprenticeships, not just for providing apprenticeship places but for small businesses to be able to gain from having apprenticeships.
	I remember that some time back we were talking about the retail area and how important it is to help the small-shop community—I have often taken up issues of small shops in my time in Parliament—to be able to obtain some apprentices and to enable them to engage with apprenticeships rather than finding them a burden. There are many different issues here, and I congratulate my colleagues, the noble Lord, Lord Layard, and my noble friend Lady Walmsley, on saying that this is an issue that we must keep our eye on. Hopefully, we will produce some tangible solutions.

Lord De Mauley: My Lords, to emphasise the concerns that noble Lords have expressed, in his 2003 Budget Gordon Brown promised that apprenticeship places would rise to 320,000 by 2006, but by 2006-07 we were 80,000—that is, 20 per cent—short of that total. Indeed, numbers were falling. That disappointing performance reinforces the concerns of my noble friend Lord Eccles. I am sure that the Minister will repeat his words about the need for balance, and we are all in agreement about the need to spend taxpayers' money carefully, but there seems little point in enacting this part of the Bill if there is no hope of the places being achieved. What reassurance can the Minister offer to both my noble friend and the noble Lord, Lord Layard, that apprenticeship provision will indeed increase in order to meet demand?

Lord Young of Norwood Green: My Lords, I understand the desire of the noble Viscount, Lord Eccles, to increase the number of apprenticeship places. That is a desire that I am sure everyone in the Committee shares; the question is how we achieve it. As has already been said, demand exceeds supply quite significantly.
	We have to examine what has been achieved so far and I make no apologies for repeating what I have said on a number of previous occasions. I was really surprised to hear the noble Lord, Lord De Mauley, say that we had failed to make progress. Perhaps I may remind him of the inheritance. In 1997, apprenticeship schemes were dead on their feet; only 65,000 were left and just over a quarter of them were being completed. If we wind the clock forward 10 years, we will see that we have a quarter of a million people engaged in apprenticeships, with over two-thirds completing them. That does not sound like failure to me; it sounds like success. Just occasionally, it would be appreciated if we acknowledged that success, because an awful lot of people have contributed to it—not least many employers, whose views I feel sure the noble Lord, Lord De Mauley, is keen to represent. Employers have worked hard on this, so we should acknowledge that progress has been made.
	The noble Lord, Lord Leitch, set us a very ambitious target in relation to young people, and meeting it will of course be a challenge. It is true that we have lost some apprenticeship places during the downturn. The downturn has had an impact on some young people, but it has not been as bad as in previous recessions because more employers are heeding the message that if you want to keep on trading, you need to keep training and that apprentices are a worthwhile investment. The young people—or mature people—concerned pay back time and again in their enthusiasm, in the fact that they are retained more, and in the contribution that they make through their imagination and enthusiasm. Apprenticeships are therefore a good investment. It is a shame that we cannot persuade even more British employers to recognise their importance and value.
	Can we deliver? That is a profoundly important question. We cannot afford to be complacent, which is why the Prime Minister announced in January this year a further £140 million for creating approximately another 31,000 apprenticeship places. The public sector, which accounts for 20 per cent of the workforce, has only 10 per cent of apprenticeships. So we have launched a real drive to create more than 20,000 further apprenticeships in the public sector and, we hope, another 15,000 in the private sector.
	We have created the National Apprenticeship Service—400 staff dedicated to ensuring the provision of apprenticeship places and that those employers who are interested in apprenticeships have a one-stop shop for handling them. We have also created a new database. We used to call it the Vacancy Matching Service; we have now made it a bit snappier and called it Apprenticeships Online. Young people and employers can go online and see what is available. Employers can register their vacancies, and young people, parents and mature people can go online and check availability. That is all part of ensuring that people understand the value of apprenticeships. We have had some successful marketing campaigns on apprenticeships, helped by the noble Lord, Lord Sugar.
	The noble Lord, Lord Cotter, expressed his lifelong concern about SMEs and small firms. It is a concern which I share: they make a valuable contribution. Small businesses are already big apprenticeship providers: firms employing fewer than 25 people are delivering almost three-fifths of 16-to-24 apprenticeships, despite accounting for less than a third of all employment. So they are making a good contribution. What are we doing to help them in those circumstances? I think that I have explained previously the concept of group training associations, where small firms can gather together under that umbrella and some of the training ability and administrative costs are provided. There are lots of good examples. We are putting more money into expanding group training associations and other models. We have also introduced the expansion pilots, giving more money to some employers to take on more apprentices than they might need, possibly for their supply chains, and we have had a good response on that front as well—I think that another 3,000 apprenticeships have been created as a result.
	On disproportionate expenditure—that phrase will be engraved on my heart after this Bill—I reassure my noble friend Lord Rix that we will bring forward amendments on Report. My noble friend Lord Layard asked about apprenticeship funding. We invest a huge amount of money in apprenticeships: we pay for the whole cost of training for those under 19 and a proportionate amount for those over 19. We are able to channel money directly to employers who can prove that they are running a fully accredited apprenticeship scheme. There is within the proposals the ability to do that.
	It is a question of priorities. From 2015, everyone up to the age of 18 will be required to participate in either education or training, or employment with training. That is a profound step forward in how we are trying to deal with young people. We are ensuring that never again will we have a situation where young people leave school or college at the age of 16 and do not get any training at all. There will be a real requirement. Noble Lords should not forget that we have also built in the right to request time to train. We are therefore in a new environment. We hope that we are creating a better culture within this country where people acknowledge the value of vocational training and apprenticeships. Apprenticeships are a major pillar of our strategy, which is why we have made apprenticeship for 16 to 18 year-olds our priority, and we make no apologies for doing so, given their impact on youth unemployment.
	The amendment proposed by the noble Viscount, Lord Eccles, would effectively remove the apprenticeship scheme. While we could not accept that, I assure the noble Viscount that the National Apprenticeship Service will have wider responsibilities to boost employer engagement and apprenticeship opportunities for all.
	I turn to Amendment 202 and my noble friend's suggestion of providing further financial incentives to employers. We do not agree that this is the right way to engage more employers in the apprenticeships programme for three reasons. First, as I have already said, the way to boost employer engagement is to disseminate positive messages about the benefits of apprenticeships in terms of increased productivity and improved staff retention. From my experience of visiting chambers of commerce or gatherings of employers, I know that there is nothing like peer-group recommendations—when employers hear other employers say to them that apprenticeships are a good investment. We have to change attitudes.
	Secondly, employers already benefit from considerable financial incentives. Apprentices aged 16 to 18 receive fully funded training from the Government, which means that employers do not have to pay these costs. Thirdly, an additional financial incentive runs the risk of creating dead weight, as public funds would be used to subsidise the cost of more than 100,000 young people already taken on by employers every year as apprentices. I assure noble Lords that employers can get apprenticeship training funding directly. Indeed, many large employers already take advantage of this. The National Apprenticeship Service will certainly publicise this opportunity through the information that it provides to employers.
	I reiterate that everyone in this Committee wants to increase apprenticeships. We believe that we have the right strategy. Our track record since 1997 demonstrates a huge achievement. Achieving our goal will be challenging; we cannot afford to be complacent for the reasons that I have outlined; and all the measures that we have taken so far to drive up the number of apprenticeship places will enable us to meet our objectives. I hope that, on this basis, noble Lords will agree not to press their amendments.

Viscount Eccles: My Lords, I confess that I am somewhat surprised to hear that my rather modest amendment, changing the duty to "maximise" and making it a best-endeavours clause rather than a commitment to provide apprenticeships to everybody, would have the effect of abolishing the scheme. However, since I am probably going to withdraw the amendment, I shall not stand guilty of such an outcome. I am grateful to the Minister for his reply and to all those who have taken part. The noble Lord, Lord Rix, seems to be able to get what he wants with commendably few words.
	We need to keep on listening very carefully to what the noble Lord, Lord Layard, says. He did not get a great deal of comfort from the Minister, but I suspect that that will not prevent him continuing with his campaign. We all hope to find that things go back to where they were. When I first joined the engineering industry we did not have to be told, persuaded or cajoled into the idea that apprenticeships were a good thing; we automatically took on apprentices because we knew that we had people retiring and we knew we would need to replace them.
	With the RDAs, I suggest that it might conceivably work, as long as their regional strategy is confined to a fairly general paper of about 10 pages long and nobody is allowed to discuss it in any formal meeting or minute any views on it. The only way in which we will get to where the Government want us to arrive and where we all support them is by working at the grass roots and not top down. Meanwhile, I beg leave to withdraw the amendment.
	Amendment 199 withdrawn.

Lord Layard: I am grateful to the Minister for his reply, and particularly for his acknowledgment that we are facing a huge challenge. We are talking about doubling the number of apprenticeship places for people under 19, with something like 100,000 extra places in five or so years. That is an extraordinary challenge to bring about an education revolution and to deliver the raising of the education participation age, which cannot be done except through this channel. It is extremely worrying that there is not more public talk about this; we do not hear enough about it from Ministers or local MPs, although this is a great new thing that should be happening in their constituencies. I am still not satisfied that there is a strong enough marketing of this to employers. Can the Minister not think of something new that can be done? I was depressed by elements of what he said, which suggested that what we are doing is fine, because what we are doing is not going to be up to the task—

Lord Elton: I just wonder whether the noble Lord is still speaking to the amendment that has just fallen in the previous group. The House is expecting him to speak to Amendment 200, which he should be moving. I hope that I am not confusing the issue, but the noble Lord may want to use that information to focus what he is saying on the amendment.

Lord Layard: I am speaking to Amendment 202, which is in the grouping and is the same amendment that I spoke to earlier.

Lord Elton: We have not got there yet; we have only got to Amendment 200. Amendment 202 should not be spoken to now, even by the noble Lord, because it fell with the group of amendments whose lead amendment was spoken to by my noble friend Lord Eccles. I do not mean to be discourteous, but the procedure is that we now move on to the amendment in the noble Lord's name, which is Amendment 200.

Lord Layard: I see, thank you. Sorry.
	Amendment 200
	 Moved by Lord Layard
	200: Clause 89, page 59, line 29, leave out "scheme" and insert "entitlement"

Lord Layard: As I have just said, one of the most important achievements of this Parliament is the introduction of the apprenticeship entitlement. That is how it is always referred to in government documents and pronouncements, except in this Bill, whose Clause 90 simply says that a person who satisfies the requirements,
	"may elect for the apprenticeship scheme".
	That wording is simply not strong enough. We are therefore in this amendment urging the Government to say that an individual is entitled to elect for the scheme. That is in line with the concept of an entitlement, and we earnestly hope that it is possible.
	That brings me to the second point, on the word "scheme". In many sections of the community, that word is frankly something that stinks. It means something low grade, like the youth training scheme, on which many people felt that they were marking time rather than moving forward in their lives. We urge the Government to drop the word "scheme". Almost any word would be better. "Entitlement" would be best, since that is what we are talking about, but the "apprenticeship offer" would be a perfectly serviceable term for what is being proposed.

Baroness Garden of Frognal: We are not totally unappreciative of what the Minister has said about the increase in apprenticeship places in the course of the last Government, but we wish to see it expanded and encouraged further. We support what the noble Lord, Lord Layard, has said about the use of the word "entitlement", which would be one vehicle by which the Government could show how they enforce their encouragement of apprenticeships. So we support the noble Lord's amendment.

Baroness Howe of Idlicote: I certainly support the amendment, which brings us back to the matter of entitlement. That is what everyone should have, whenever they reach a point in life when something could be beneficial to them. It is a lifelong learning point, again, I suppose. My concern remains with the financial side that a much higher priority should be given, even during this time, to seeing that there are the resources to enable that entitlement to take place.
	I still worry about those with a learning disability, who should be helped up to the age of 25. Nobody has covered the point, because the noble Lord, Lord Rix, has had all his worries sorted out, but we have heard nothing about them on the Floor of the House. I assume that the noble Lord has sufficient assurances about funding for that, but it would be nice to hear from the Minister that it is the case.
	I, too, congratulate the Government on a lot of what they have achieved. However, there is a problem with the small and medium-sized businesses, and I am not certain that enough has been done in that respect. Perhaps we could encourage them to act much more as mentors of young people and really get value for that. I remember giving evidence on this sort of subject to an inquiry, and the biggest complaint was from the small or medium-sized employer, which was doing all this training only to have his apprentices, whom he had trained at cost to him, nicked by big employers that were not prepared to pay one penny for the training.
	I very much support the amendment and hope that we hear encouraging words from the Minister.

Lord Young of Norwood Green: I agree that the public presentation of the Government's commitment to expand apprenticeship opportunities for young people is important. We are making an ambitious commitment and the scale of this ambition needs to be recognised.
	The name we attach to these clauses changes neither the nature nor the scale of our commitment. However, the one thing that the chief executive of the Skills Funding Agency is not able to guarantee is a job. He or she will encourage employers to provide employment opportunities for potential apprentices through a variety of measures. That is the challenge that we face. However, I recognise my noble friend's concern about the use of the word "scheme" presentationally—I hope to make him an offer that he cannot refuse, if he will pardon the pun—and have committed to consider an appropriate alternative which we will bring forward on Report. I hope that, on that basis, my noble friend will withdraw Amendment 200.
	Amendment 203 would change Clause 90 so that a suitably qualified person "is entitled to elect for the apprenticeship scheme". This would not alter the substance of the clause. A person would still only be able to elect for the apprenticeship scheme if they satisfy the requirements set out in Clauses 90(2) and (3) and 93, and changing the wording to "entitled to elect" does not confer any additional entitlement. It is important that we are absolutely clear about this. However, with that caveat, I am willing to accept this amendment.

Lord Elton: I imagine that the noble Lord wishes to express his gratitude.

Lord Layard: I am not adequately versed in the procedure. Of course I am delighted with what the Minister has said on both amendments.
	Amendment 200 agreed.
	Amendment 201 not moved.
	Amendment 202
	 Tabled by

Lord Layard: 202: Clause 89, page 60, line 4, at end insert—
	"( ) The Chief Executive shall arrange that when a employer provides an apprenticeship place to a person aged under 19, the employer shall be paid a flat-rate sum in recognition of the costs involved in time off for off-the-job learning."

Lord Layard: When I spoke out of order, I wanted to say that I am not happy with what the Minister said on this. I very much hope that the Government can come up with some constructive suggestion about how it can be made easier for an employer to receive the money in an automatic fashion. Although there are national employers who receive money for apprenticeships, for a local employer that is not the standard system; the money is not pitched directly to them. There is no standard method by which an employer can simply take on an apprentice and go and ask for the money. That is what we need. I hope that the Minister can come back with some suggestion along those lines on Report.
	Amendment 202 not moved.
	Clause 89, as amended, agreed.
	Clause 90 : Election for apprenticeship scheme
	Amendment 203
	 Moved by Lord Layard
	203: Clause 90, page 60, line 10, leave out "may" and insert "is entitled to"
	Amendment 203 agreed.
	Amendment 204
	 Moved by Lord Rix
	204: Clause 90, page 60, line 13, at end insert "or is aged under 25 and has a learning difficulty"

Lord Rix: My Lords, unfortunately the noble Viscount, Lord Eccles, is not in his place, but I assure him that I learnt that brevity is the soul of wit the hard way in your Lordships' House. The first question I asked, nearly 18 years ago, was shouted down by the Conservative Government of the time as "making a speech". I was then severely ticked off by the noble Earl, Lord Ferrers. So I learnt in those days that to keep things short was preferable. I only wish that some of your Lordships would also learn that lesson.

Noble Lords: Hear, hear!

Lord Rix: My Lords, in moving Amendment 204, I also speak to Amendments 205, 209 and 210. As I have reported, I and others have had the opportunity in recent weeks to discuss with the Minister and various officials within the department my ongoing concerns in response to the various amendments tabled in my name. These discussions have proven to be most fruitful and I thank the Minister for the characteristic courtesy and diligence with which he has approached these issues.
	I am also aware that other discussions have taken place, and continue to do so, between the Bill team and the representatives of Mencap, the Special Educational Consortium, Skill and others who are interested in maximising the opportunities for people with disabilities, including those with a learning disability, to access apprenticeships as a credible and worthwhile pathway to employment and, therefore, full participation in society.
	Following these negotiations, I understand that government Ministers are minded to table various amendments on Report. I assure the noble Baroness, Lady Howe, that these amendments will obviously be scrutinised on Report. They should meet many of the concerns referred to in the various amendments tabled in my name and those of other noble Lords. Any further assurances that the Minister may be able to make on other matters would be most welcome. I beg to move.

Lord Young of Norwood Green: With the indulgence of the Committee, I was hoping to save a bit of time. I am pleased that, with the extensive discussions that have taken place with the Special Educational Consortium, Skill, Mencap and other key interest groups, and the progress that has been made, we will bring forward amendments on Report to address these issues. They will enable people with learning difficulties to meet the entry requirements through alternative evidence, rather than the qualifications set out in Clause 93, and may extend the age range of the apprenticeship entitlement up to 25 for people with learning difficulties. In developing those regulations, we will continue to work closely with those key interest groups to ensure that we have criteria that mean that this extension is available to those who genuinely need it without lowering the bar around the entry requirements or the quality of the apprenticeships.
	I understand the concern of the noble Lord, Lord Addington, about the timing of these amendments. I hope that he will recognise that it has been essential to have the discussions to which I referred to ensure that we get the amendments right. I hope that, on this basis, the noble Lord will feel able to withdraw his amendment.

Lord Addington: I thank the Minister for his comments and for the meetings, but will he also ensure as he goes through this that everything is at least within the spirit of the Disability Discrimination Act? As the Bill is drafted, there may be a legal challenge against it. It has what I, and many people to whom I have spoken, regard as an arbitrary element, although the Minister did not like that term when I used it in discussions with him. The Government have to achieve certain levels but have not achieved the spirit that we have established in many arguments on disability and education over many years in this House, even with changes of government, which is that the system must be flexible to include people. If the noble Lord can give me an assurance now that this will be taken into account, it would increase the speed with which we progress on Report because, unusually for an education Bill, this Bill seems to have missed this issue. I just hope that the Minister can give us an assurance that the Government really will look at it for the rest of the Bill.

Lord Young of Norwood Green: I thank the noble Lord, Lord Addington, for his comment. We will probably have to agree to disagree about my not particularly liking the use of the word "arbitrary" because I regard basic literacy and numeracy as of vital importance. Of course we want to ensure that we are true to the spirit of the Disability Discrimination Act. This is a new provision, not mirrored elsewhere. However, regulations will ensure that we meet the public sector disability equality duty under Section 49A of the Disability Discrimination Act. It is in line with the Education and Skills Act 2008, which requires the needs of those with learning difficulties and disabilities to be taken into account.

Lord Rix: My Lords, I thank the Minister and the Bill team for their co-operation in this matter. I am most grateful and I look forward to reading these amendments when they are forthcoming. I hope that we will be able to agree them. With those good wishes, I beg leave to withdraw the amendment.
	Amendment 204 withdrawn.
	Amendment 205 not moved.
	Amendment 206
	 Moved by Lord Layard
	206: Clause 90, page 60, line 30, at end insert—
	"( ) A person who completes the Level 2 apprenticeship before reaching their nineteenth birthday is entitled to elect for an advanced apprenticeship."

Lord Layard: My Lords, the entitlement that is currently proposed is really quite limited. For somebody without level 2 qualifications, it guarantees that they will have access only to a level 2 apprenticeship, but to nothing further beyond that. That would be the equivalent, on the academic route, of guaranteeing somebody without GCSEs the entitlement to study for GCSE grades A to C, for example, but it would not guarantee them, if they were successful, the right to progress to A-levels or diplomas. We would never consider a block to progression of that kind along the full-time route and we should be equally unwilling to consider a block to progression along the part-time route. Therefore, we urge that anyone who completes a level 2 apprenticeship before their 19th birthday should be entitled to progress to a level 3 apprenticeship. If their existing employer did not want to provide one, the National Apprenticeship Service would have to help them to find a place elsewhere.
	As I have said, this is a matter of fairness, but it is also much more important economically as a matter of national efficiency. On the continent, the standard apprenticeship is taken at level 3. Unfortunately, in our country the most common apprenticeship for young people ends at level 2. The major reason for that is the low rate of progression by those who get level 2 to level 3. When the Economic Affairs Committee of this House reported two years ago, only 20 per cent of those who completed level 2 were progressing to level 3. That is just not good enough. We have to build in an automatic entitlement to progression, for the sake of both fairness and efficiency. We strongly urge the Government to accept our amendment.

Baroness Garden of Frognal: My Lords, in the interests of brevity I will say simply that, for all the reasons that the noble Lord has given, we on these Benches support the amendment.

Baroness Howe of Idlicote: My Lords, I would like just to say, also in the interests of brevity, that I thoroughly support the amendment. Indeed, it speaks for itself that it should be adopted by the Government. I hope that they will do just that.

Lord Young of Norwood Green: My Lords, I agree with my noble friend Lord Layard that progression from a level 2 to a level 3 apprenticeship is important. I disagree slightly with my noble friend that the entitlement is quite limited, given that he said in the previous debate that it was very ambitious. It is not often that I feel that I have to draw his attention to something like this, but it cannot be quite limited and very ambitious at the same time. I believe—and I think that the Committee believes, given the comments that have been made on all sides—that our ambitions, as defined in the Bill, are ones that will take a great deal of effort to achieve.
	In many industries, such as construction and engineering, the progression happens naturally, as apprentices usually continue the level 3 element of their training on completion of their level 2 apprenticeship. We are working to ensure that this is the norm across all sectors. First, the Government will fully fund the training costs of level 3 learning for all apprentices who start their learning before the age of 19. Secondly, the guidance to the specification of apprenticeship standards in England will emphasise the importance of progression through the various levels of apprenticeship and routes into and out of apprenticeships. Thirdly, the National Apprenticeship Service will work with those sectors without a strong track record of progression from level 2 to level 3 to identify specific barriers to progression and actions to overcome these. There are such sectors; there is no doubt about that. We also hope that, through this legislation, the right to request time to train will have an impact. Fourthly, following discussions with the noble Lord, Lord Layard, we will ensure that the apprenticeship agreement has a prescribed term that requires discussions to encourage progression from level 2 to a level 3 apprenticeship.
	Ultimately, unfortunately, this comes down to matter of priorities. I absolutely agree that we should seek to increase progression rates still further, but now we are clear that our focus has to be on ensuring the availability of a first apprenticeship place. I remind noble Lords that this year we are spending nearly £1 billion on apprenticeships. It is a question of finite resources and, we believe, of encouraging both employers and learners. We are making progress. There is no room for complacency but, on this basis, I hope that my noble friend may be persuaded to withdraw the amendment.

Lord Layard: My Lords, I am most grateful to the Minister for his reply. It is important to put this in some perspective. It would not come into force for another six years or so. It would then set the pattern for our system of education for this group of young people for at least 10 or 20 years, so we should be willing to raise our sights. I am not completely happy with the reply. Perhaps we will have to come back to this on Report. In the mean time, I beg leave to withdraw the amendment.
	Amendment 206 withdrawn.
	Clause 90, as amended, agreed.
	Clause 91: Meaning of "apprenticeship place"
	Amendments 207 and 208 not moved.
	Clause 91 agreed.
	Clause 92 agreed.
	Clause 93: Apprenticeship scheme requirements
	Amendments 209 and 210 not moved.
	Clause 93 agreed.
	Clause 94: Apprenticeship scheme requirements: interpretation
	Debate on whether Clause 94 should stand part of the Bill.

Lord Lucas: My Lords, I would just like to ask: why the Secretary of State and not Ofqual?

Baroness Morgan of Drefelin: My Lords, I can offer some clarification here. Clause 94 mirrors the interpretation of qualification levels in Part 1 of the Education and Skills Act 2008, which was passed before Ofqual was established. Obviously, as the Bill progresses through Parliament, Ofqual is being established. Perhaps we should write to the noble Lord with a further explanation of our intentions before Report stage because it seems to me—and possibly to the noble Lord—that maybe the clause should say Ofqual.
	Clause 94 agreed.
	Clause 95 agreed.
	Clause 96: Power to amend apprenticeship scheme
	Amendment 210A not moved.
	Clause 96 agreed.
	Clause 97 agreed.
	Clause 98 : Provision of financial resources
	Amendment 211
	 Moved by Lord Addington
	211: Clause 98, page 64, line 27, at end insert—
	"( ) volunteers within community amateur sports clubs"

Lord Addington: With this amendment we go slightly away from the main thrust of most of the discussion. The Bill is entitled Apprenticeships, Skills, Children and Learning Bill, and I consider that sporting activity is covered under skills, children and learning. The Government should provide greater financial resources for sporting activity given that they are encouraging everybody to be more active and they have a target to encourage 2 million people to take up exercise or sport. Further, if you train people properly and they know what they are doing, they tend to enjoy what they are doing more and tend to continue doing it. They also have a skill base that can be reignited later in life. That is why I suggest that the wording of Amendment 211 should be added to Clause 98. If we make resources available to the volunteers who are achieving a government objective with no financial reward, we shall save money in the long term, certainly as regards health costs. In addition, such a measure would assist the Government to achieve one of their immediate objectives.
	The Government may well tell us that money is being put into other areas, but I am talking about volunteers, who comprise most of the grass-roots participation. Those who volunteer their services in community amateur sports clubs are not the only group in this regard but they have a legal identity and we know what we are dealing with. It is a containable group and constitutes a way into this issue. This is a probing amendment to see whether two parts of Government can join together to implement the designs of Government as a whole. I look forward to hearing what the Minister says. I beg to move.

Lord Young of Norwood Green: My Lords, I know that this is an issue in which the noble Lord has taken considerable interest in this and previous debates, and it is one to which the Government are committed.
	Coaches play a critical role in Sport England's strategy to build a world-leading community sport system and getting 1 million more adults doing more sport by 2012-13. Sport England is making available £480 million to national governing bodies of sport over 2009-13 to drive the development of their sports to deliver these goals. Of this, at least £100 million will be invested in coaching. While the bulk of funding comes from Sport England, I confirm that the Skills Funding Agency will be able to fund sports coaches where appropriate. Clause 84 allows for the chief executive of Skills Funding to provide financial support to any adult receiving, or proposing to receive, education or training falling within the chief executive's remit, which might include those being trained as sports coaches, whether they are volunteers or not.
	Volunteers within community amateur sports clubs may be eligible for some funding from the Skills Funding Agency towards the costs of training, though it is likely that they would also have to make a contribution. However, some learners will be able to have access to full fee remission. They will include those on means-tested benefits, and those who are eligible for the adult entitlements as set out in Clauses 85, 86, 87 and Schedule 5.
	We place enormous store on the importance of more informal learning for personal, family and community development. We want more individuals to participate in learning generally, and for colleges and others to continue to provide a wide range of opportunities for informal learning, including opportunities for volunteering.
	While I recognise the particular contribution of volunteers at community amateur sports clubs, I hope the noble Lord will recognise that it would be impractical to list all categories of learners who may be eligible for funding on the face of the Bill. I hope that, on that basis, the noble Lord will feel able to withdraw the amendment.

Lord Addington: My Lords, I thank the Minister for that reply, which was slightly more helpful than I had expected, but nowhere near as helpful as I had hoped. I could wax long about the importance of volunteers in sport but I think that noble Lords' attention would wane if I did so. The Government have said that funding routes are available in this regard. However, it is evident that volunteer coaches do not have a grab-hold on this system of funding. I do not know whether that issue will be followed up in the Bill but I thank the Minister for clarifying the position. I beg leave to withdraw the amendment.
	Amendment 211 withdrawn.
	Clause 98 agreed.
	Clause 99 agreed.
	Clause 100 : Performance assessments
	Amendments 211A and 212 not moved.
	Clause 100 agreed.
	Clause 101 agreed.
	Clause 102 : Assistance and support in relation to apprenticeship places

Amendment 213 not moved.
	Clause 102 agreed.
	Clauses 103 to 108 agreed.
	Clause 109 : Strategies for functions of Chief Executive
	Amendments 213A and 213B not moved.
	Clause 109 agreed.
	Clauses 110 to 112 agreed.
	Amendment 214 not moved.
	Clause 113 : Persons subject to adult detention
	Debate on whether Clause 113 should stand part of the Bill.

Lord Lucas: My Lords, I declare an interest, as I did yesterday, in that I am married to a lady who runs a prisons education charity. I looked in the Explanatory Memorandum for an amplification of Clause 113 and see that it says exactly the same words as the clause, near enough. Can the Minister amplify the intentions here? It seems to me that it might mark real progress in the relationship between education and prisons.

Lord Young of Norwood Green: I hope that I can amplify as requested. I know I hardly need make the point that prisoners are among the most disengaged and disadvantaged learners in the country. It is clear from exchanges yesterday and earlier this week on the education of young offenders that the Committee is well aware of the importance of the offender learning agenda. I know, therefore, that there is broad support for the Government's position that addressing learning needs in order to develop the skills prisoners need to get and retain employment on release is very important.
	The offender learning agenda remains a key component of the Government's reducing reoffending strategy. The Bill places a duty on the chief executive of Skills Funding to consider the needs of prisoners as an integral part of his or her role. This is the first time that a piece of education legislation has set out the duties for the mainstream education delivery services—the local education authorities for those held in youth detention accommodation and the chief executive of Skills Funding for those in adult detention—in meeting the learning needs of offenders since that responsibility passed from the Home Office to the predecessor of our two departments in 2001.
	This is an important though brief clause that reinforces the critical importance of the Skills Funding Agency in maintaining a focus on the skills agenda for adult learners in prison and continuing to deliver the improved service to which the noble Lord, Lord Lucas, referred yesterday.
	Clause 113 agreed.
	Clauses 114 to 116 agreed.
	Clause 117 : Other directions relating to functions of the office
	Debate on whether Clause 117 should stand part of the Bill.

Lord Lucas: My Lords, I take this opportunity to come back to the question that we debated yesterday on the meaning of the wording in Clause 117(4), which duplicates that in Clauses 73, 74 and Clause 59(10).
	The question here is where that wording leaves the line to be drawn. I have had some very useful discussions with members of the team since last night, and my understanding is that their intention is to leave the line fuzzy and, as it were, to be determined in each case, but that it is clearly out of court for a Minister to try to direct how an individual institution should be funded. It would be clearly allowable that the Minister should direct, say, that additional funding was given to sixth-form colleges generally and that the interpretation of any particular instruction would have to come down to the particular circumstances, because clearly no exact rule is specified in the clause. The line, in terms of the wording, could come anywhere. It is important to establish on the Floor of the House what the Government's intention is and how in practice the line should be drawn.

Lord Young of Norwood Green: My Lords, the key is whether the direction would affect funding to a particular college. If it would, it is not permitted under Clause 117(4). So a direction to give more money to a named college would clearly not be permitted, nor would a direction to give money to a particular class of colleges. If there is only one college in the class, for example a direction to give more money to FE colleges in Winchester, which was quoted previously, a more general direction—a direction to allocate more money to skills training in a particular region—perhaps would be okay, because it would not necessarily affect the funding to any individual college or individual.
	This subsection was intended to be a check on the Secretary of State to make him or her consider whether a direction is really about setting objectives for the chief executive as set out in subsection (1), or whether it is aimed at determining the levels of funding for particular providers. If a direction is framed in too specific a way, it may be vulnerable to challenge in the courts.
	Clause 117 agreed.
	Clause 118 agreed.
	Clause 119: Sharing of information for education and training purposes
	Amendment 215
	 Moved by Baroness Verma
	215: Clause 119, page 74, line 37, at end insert—
	"( ) enables personal data to be shared between persons to whom this section applies without first gaining the consent of the individual to whom it belongs"

Baroness Verma: My Lords, this amendment would restrict the data-sharing powers introduced in the Bill in a manner that would help ensure the security and privacy of personal data.
	Clause 119 allows the bodies replacing the Learning and Skills Council—the chief executive of the Skills Funding Agency, the YPLA, a designated person, a member of the chief executive's staff, a member of staff of a designated person, or a person providing services to any person out of those—to share information with each other and with a local education authority or a person providing services to a local education authority. It does not extend local authorities' power to share information with each other. This latter was a concession, for which we are grateful.
	Nevertheless, we are concerned about the safety of private and personal information that can be shared among this very large number of bodies and people. We understand that it may sometimes be necessary to share information across different bodies that are responsible for different areas of the same service. This would seem to be an unfortunate consequence of the Government's desire to introduce more quangos. Perhaps the Minister could indulge the Committee by providing a few examples of times when this would be necessary. Is this to aid the day-to-day workings of these new bodies, or is it to analyse the effectiveness of the Government's policies as suggested in another place? If it is the latter, surely the heading,
	"Sharing of information for education and training purposes",
	is somewhat misleading.
	Perhaps the Minister will inform us that the data will need to be shared to help or to secure suitable education and training. We understand that this may be the case. However, in such an instance, does the Minister agree that it would still be more appropriate to ask permission of the individual? Given this Government's appalling record on data safety, this would be a fitting amendment. Furthermore, as it is rather a standard safety device, it would appear to be difficult for the Minister to object to it. I beg to move.

Baroness Garden of Frognal: My Lords, we support the amendment. The clause refers to a great many people who share the data, and in line with people having an entitlement to know who is getting their personal data and who it is being shared with, this amendment seems entirely sensible.

Lord Ramsbotham: My Lords, I am very glad that this amendment has come forward. I hope, yet again, that the position of those in custody is not forgotten. Not only is there bad passage of information between different institutions in the custodial system, but it is terribly important, considering that something may have been started which needs to be carried on after people have left custody, that the information is available to those who are responsible for carrying out that transition practice.

Lord Lucas: My Lords, I quite agree with what the noble Lord, Lord Ramsbotham, said. I have not located the part of the Bill that allows that to happen. I was looking at the other end of things on page 32, at proposed new Section 562E. My understanding is that the clause we are looking at does not affect page 32, because this part has sufficient powers within itself to allow the transfer of information inwards towards the Prison Service. Reading it in detail, my concern is that the right it gives is to ask information of a local authority. The host authority or those involved with the education of the prisoner can get at the relevant local authority to find out information that it has, but the local authority has no right to go back to the school or other educational establishment that has been providing education for the prisoner before then. How does the clause we are looking at now affect that transfer between the school and the local authority? How do the mechanisms provided in proposed new Section 562E in conjunction with the clause we are looking at now work to allow for efficient transfer of information? I do not need an answer now if it is not immediately to hand.

Lord Young of Norwood Green: My Lords, officials in the Information Commissioner's Office have reviewed the department's plans for how data sharing will operate and are reassured that we are committed to developing a reasonable and proportionate system. In addition, they have confirmed that, as currently drafted, they can see nothing that is likely to cause concern, and they will continue to work with us as we move towards implementation and beyond.
	Clause 119 does not provide any new data collection powers nor introduce any additional databases. It simply changes the partners with whom information is shared. The information is both for operational purposes and analysis, and it will help to secure appropriate training, which was one of the concerns expressed by the noble Baroness, Lady Verma.
	Introducing consent as a precondition of this data sharing would result in agencies having incomplete data for planning and funding purposes. It would also add enormously to the costs. We have been assured by the Information Commissioner that we are doing nothing that undermines individual liberties. All agencies will, as now, operate in accordance with the provisions of the Data Protection Act, which contains the necessary safeguards. In addition, there will be a specific data-sharing protocol, developed in consultation with the Information Commissioner, covering what and how sharing of information will take place between these agencies. As is already required by the Data Protection Act, all information gathered from learners will operate under a fair processing notice, setting out for learners who will see their information and why. Under current arrangements, where appropriate—for example in relation to the learner being contacted for surveys—the learner's consent is sought. This will continue under the new arrangements.
	I also want to answer the question about transfer of information on young offenders. I am assured that they are covered by Part 2. If we have not picked up every aspect of the concern of the noble Lord, Lord Lucas, we will respond in writing. That should also address the concern of the noble Lord, Lord Ramsbotham. With those assurances, I hope that the amendment can be withdrawn.

Baroness Verma: My Lords, I thank all noble Lords for their contributions. I have listened carefully to the Minister, but I am not sure that he has satisfied the concerns of the House. I will read his response very carefully in Hansard. For now, I beg leave to withdraw the amendment.
	Amendment 215 withdrawn.
	Clause 119 agreed.
	Clause 120 agreed.
	Schedule 6 agreed.
	Clause 121 agreed.
	Schedule 7 agreed.
	Clause 122 agreed.
	House resumed. Committee to begin again not before 2.32 pm.

Crime and Disorder Act 1998 (Youth Conditional Cautions: Code of Practice) Order 2009

Copy of the Order
	21 Report from the JCSI

Motion to Approve

Moved By Lord Bach
	That the draft order laid before the House on 8 July be approved.
	Relevant Document: 21st Report from the Joint Committee on Statutory Instruments.

Lord Bach: My Lords, I shall speak also to the Criminal Justice Act 2003 (Conditional Cautions: Code of Practice) Order 2009. I hope that it will be for the convenience of the House that these two orders are debated together.
	The orders implement codes of practice which govern the use of the adult conditional caution and the youth conditional caution. I have asked for these orders to be debated together because of the similarities between the two schemes. I will speak first about the Criminal Justice Act 2003 (Conditional Cautions: Code of Practice) Order 2009. Its sole purpose is to implement the revised code of practice for conditional cautioning, which will come into force the day after the order comes into force.
	Part 3 of the Criminal Justice Act 2003 allows the Crown Prosecution Service and other specified prosecuting authorities to administer a conditional caution in certain circumstances. The basic requirements are that the offender is an adult—18 or over—admits the offence, and that there is sufficient evidence to prosecute. It is also necessary that the offender should agree to the caution. Where it is possible to set appropriate conditions, the public interest may be met more effectively by the offender carrying them out than by being prosecuted. If the offender fails to comply with the conditions he may be prosecuted for the original offence.
	Conditional cautioning has been available for adults throughout England and Wales since March 2008. It is currently operating under a code of practice approved by Parliament in 2004. We now want to update that code to provide for amendments to the Criminal Justice Act 2003 made by the Police and Justice Act 2006. These amendments allow for punitive conditions to be attached to a conditional caution—specifically a financial penalty. We have also taken the opportunity to make further amendments in the light of operating experience and to improve the structure and readability of the code.
	The Secretary of State is required to publish the code of practice in draft, and this was done as long ago as 6 March 2007. Public consultation took place between then and 29 May 2007; 42 responses were received. Further revisions to the draft code were made in light of these responses. The revised code was approved by the Justice Secretary, Home Secretary and Attorney-General, and the draft order was laid before Parliament in July this year.
	The key changes to the revised code of practice are: first, the extension of the conditional cautioning scheme to allow for a punitive condition, specifically a financial penalty, to be attached to a caution; secondly, guidance on the power of arrest and detention; thirdly, removal of the requirement for an admission to be made in a PACE interview before a conditional caution can be administered; and fourthly, additional safeguards to ensure that this disposal is used appropriately.
	The House will have noted the delay between the consultation exercise and the laying of the draft order introducing it. Following the machinery of government changes in 2007 we decided to delay the introduction of a revised code of practice until national rollout of the conditional caution had been completed in March 2008. The subsequent timetable has taken into account our decision to test the financial penalty for the adult conditional caution at the same time and in the same areas as the new youth conditional caution.
	If the order implementing the revised code is approved by Parliament, it will be implemented across England and Wales next month. The key new element—the financial penalty condition—will be available in only five specified areas: Cambridgeshire, Hampshire, Humberside, Merseyside and Norfolk. This was set out in relevant commencement orders for Section 17 of the Police and Justice Act 2006. Following a review of the pilot, a decision on national implementation of the financial penalty condition will be taken.
	The purpose of the other order is to implement the code of practice for the youth conditional caution. The code of practice will come into force the day after the order comes into force. Section 48 of the Criminal Justice and Immigration Act 2008 extended the use of conditional cautions to young people aged between 10 and 17 by amending the Crime and Disorder Act 1998, although we agreed during the passage of the legislation that the youth conditional caution would be introduced in stages, beginning with its use for 16 to 17 year-olds.
	The youth conditional caution has been designed to operate in a way consistent with the adult scheme. However, there are by necessity a number of differences. First, as is the case with other out-of-court disposals for young people, a youth conditional caution will not be available to a young person who has previously been convicted of an offence. There is no such restriction for the adult scheme. Secondly, the youth code sets out the role of the youth offending team—the YOT—in advising on the appropriateness of a conditional caution and overseeing the completion of the conditions. There is no equivalent in the code for the adult conditional caution. Thirdly, punitive unpaid work is available for the youth conditional caution, as the facility for this is established, and it allows a punitive condition to be put in place and a conditional caution offered in the likely event that the young person might not have the ability to pay a financial penalty. Fourthly, the adult code allows for a condition to be attached to a caution requiring the offender to pay for the course he is attending. A young offender cannot be required to meet the costs of a course he is attending as a condition of a caution.
	The Secretary of State is required to publish in draft the code for the youth conditional caution, and this was done early in March this year. Public consultation took place between then and the end of May; 32 responses were received. As a result of the consultation a number of detailed amendments were made to the code to remove perceived ambiguities. The code was subsequently agreed by the relevant Ministers and draft orders were laid in July.
	If the order implementing the code is approved by Parliament, we will pilot the youth conditional caution in the same areas as the financial penalty condition for adults. A decision about national implementation will then be taken. I commend the draft statutory instruments to noble Lords.

Baroness Seccombe: My Lords, I thank the Minister for explaining, with his usual clarity, the details of these orders. I was privileged to be a magistrate for more than 30 years, but I was never involved with youth justice.
	One code of practice before us deals with cautions for 16 and 17 year-olds. Youth crime today is a symptom of a broken society, and any approach to fix it must address prevention as well as appropriate punishment for any offence. Cautions have traditionally been an alternative to punishment, and used to encourage a person not to reoffend. Conditional cautions, however, tag on to the caution what amounts to a punishment. Would a better approach not be to have cautions on the one hand, and punishments administered by a court on the other?
	There is not enough room in the justice system to deal with crime effectively, as so many magistrates' courts have been closing—at the rate of seven a year since 1997. Is the risk with conditional cautions that we further reduce access to the courts, while at the same time restricting the efficacy of interventions prior to punishment? Could the end result of the process be to increase the pressure on the criminal justice system by funnelling young people into it? The point made by my honourable friend the Member for Enfield Southgate, David Burrowes, is worth reiterating. He said:
	"The fast track to punishment does not necessarily lead to a fast track to justice".—[Official Report, Commons, Criminal Justice and Immigration Bill Committee, 22/11/07; col. 477.]
	A youth conditional caution can be given only where the youth has not previously been convicted of an offence. However, the adult conditional caution is available at any point in an offender's career. Therefore, an 18 year-old young adult with a single previous conviction might be given a conditional caution in circumstances where the criteria for a 17 year-old would require prosecution. Will the Minister explain the inconsistency between the youth and adult conditional caution schemes? The Government are willing to resort to conditional cautions where they are not appropriate, and deny people, both under and over 18, access to justice. However, cautions are also used where they are not appropriate because they are not strong or strict enough.
	There is a caution culture in the country that gets the balance wrong. Earlier this year, it was revealed that four in 10 serious offenders are being let off with a caution. The number of cautions given to violent criminals has risen by 82 per cent in five years. Does the Minister agree with my party that anyone carrying a knife without a reasonable excuse should expect to be prosecuted rather to receive a caution? Does he further agree that those convicted of carrying a knife should expect to receive a custodial sentence? The Government use cautions to pre-empt justice. This can be too strict for some and too lenient for others.
	Conditional cautions can also be used for multiple offences that individually would not result in the offender being sent to court. This sends the message that, once you have committed a crime, you might as well commit others of a similar nature, because the punishment will not change. Is this what the Government mean by being tough on crime?
	It has emerged recently that inaccuracies with Ministry of Justice data are preventing the release of the latest offender management statistics. Does this mean that the Minister is unable to provide the House with up-to-date figures on reoffending rates among those given conditional cautions, or is he able to give them to us today?
	The Government have operated a managerial, centrally driven approach to justice, which has failed young people, both as victims and offenders. Central Government have moved the deckchairs of responsibility for youth justice between the Ministry of Justice, the Home Office and the Department for Children, Schools and Families. Meanwhile, the youth justice system, which should be directed primarily by local communities, has been sinking. We on this side of the House have argued for greater responsibility for the custodial budget to be devolved to local communities, so that local decisions can be made about the numbers in custody. The Government should pause before another experiment with the justice system fails the British people. The future of our country depends on the young people of today. I believe that it behoves all of us to ensure that we have a justice system that is seen as fair and responsible.

Lord Thomas of Gresford: My Lords, I, too, thank the Minister for his statement in support of these orders. In 2003, we on these Benches welcomed the introduction of the conditional caution, which at the time could contain conditions relating to rehabilitation and reparation. My noble friend Lord Dholakia spoke in favour of it at the time. However, in 2006, we opposed the introduction of conditions that were punitive, and also the provision that the police could arrest a person on suspicion of non-compliance with the conditions that had been made.
	The basic objection in principle to the punitive element is that it puts into the hand of the prosecutor the job of being both judge and jury as well as prosecutor. Where we have fixed-penalty fines, the amount of the fines, which can be handed out by police officers for various minor offences, is fixed by Parliament, or by regulations that have gone through Parliament. However, when it comes to the punitive condition that is now to be attached to these cautions, the onus passes to the prosecutor to decide all sorts of things. He can decide the amount of the fine, for example. He can decide what amount is to be paid, when and how. When it comes to youth justice, he decides much more than that—there is quite a menu for him to pick from. He can be involved in choosing his conditions. The guide says:
	"Conditions may be included to reflect and secure the interests of the victim and neighbourhood or community (for example by requiring the youth to stay away from a specific area)".
	There is reference to opportunities to provide unpaid work that benefits the community and the use of a,
	"financial penalty condition ... to punish the youth and deter future offending".
	We now have a system whereby the prosecutor rather than a court determines matters of discretion—the type and amount of punishment. The Magistrates' Association has written to a number of us—we may hear more about this—expressing opposition to the idea that the principle that has governed our justice system until now, that a court with independent judges or magistrates should determine punishment, should now be abandoned so that a prosecutor can do what he likes, within the limits that the Bill sets down. A very large discretion is given to the prosecutor to determine how to punish a particular person. As I have already said, when you add to that the power of the police to arrest someone and hold them in custody merely on suspicion of non-compliance with conditions which a prosecutor, not a court, has set down, it can be seen how far the principle has been breached.
	Therefore, we do not welcome the orders. We think that the provisions of the 2006 Act were wrong. We always agreed with the provisions of the 2003 Act which kept people out of prison, although we dislike the idea that people who have a caution should also have a criminal record. Since then, of course, not only previous convictions but a list of cautions that have been administered to a person are produced in court on the conviction and sentencing of that person. The danger is that a person will always be inclined to take a caution, which will avoid him having to stand in front of a court, rather than take a punishment from the court. Therefore, there was a great intrusion of principle in the 2006 Act and we still oppose it.

The Earl of Listowel: My Lords, I, too, am grateful to the noble Lord, Lord Bach, for presenting these instruments, but I share the concerns expressed by the noble Baroness, Lady Seccombe, and the noble Lord, Lord Thomas of Gresford. I see there being a risk of injustice. I have read the letter from the Magistrates' Association and it causes me concern. I agree of course that it is appropriate to use this sort of instrument for minor offences, as long as we can be sure that they are minor offences. However, as the Magistrates' Association points out, there is very little monitoring of these out-of-court disposals, so we do not know whether they are being applied to minor offences, and the association's own study indicates that there is wide disparity in their use. These fines do not take account of the means of the offender to pay. As a result, more than 50 per cent of all fines imposed out of court are not paid, so there is the additional disadvantage that magistrates' courts end up having to tidy up, which produces a drain on their already stretched budget. Can the Minister say what support is being offered to magistrates' courts to deal with this additional burden?
	As the noble Lord, Lord Thomas of Gresford, said, the orders appear to give considerable additional powers to the police. It concerns me that the necessary monitoring is not there to ensure that the provisions are applied in a consistent and just manner to those involved. I look forward to the Minister's response.

Lord Bach: My Lords, I am grateful to the noble Lords who have spoken in this short debate. Our starting point is that the law-abiding majority want to see crimes, no matter how small, dealt with effectively and efficiently, and for a long time cautions have been part of that process. They allow the police to deal swiftly with low-level offending, freeing them up to spend more time on the front line and dedicate more time to more serious offences. They also free up court time for more serious offences.
	We believe that conditional cautions can have a positive effect in addressing the reasons behind some offences, perhaps particularly anti-social behaviour. The use of rehabilitative conditions, such as attending an alcohol awareness course, combined with a financial penalty, can help to tackle some of the root causes of the crime as well as delivering a fitting penalty. The Criminal Justice Act places no restrictions on the types of offences for which conditional cautions may be administered but we have made it clear, as has the Director of Public Prosecutions in his guidance, that they should be used only for low-level offending. Indeed, his guidance restricts their use to summary and certain either-way offences. A conditional caution cannot be administered for indictable-only offences, hate crimes, offences involving domestic violence and—here I am replying to the noble Baroness—offences using knives or offensive weapons. Youth conditional cautions put in place rigorous conditions to address bad behaviour while ensuring that the person admits his wrongdoing and makes amends to the local community by repairing damage that may have been caused, paying compensation or having restrictions placed on his movements.
	The noble Baroness spoke about a broken society and crime generally. I am sure that I do not have to remind her and the House that, for the first time in living memory and beyond, this is the first Government to have presided over a considerable fall in the number of crimes that have been committed. That is a proud record and contrasts clearly with the record of the previous Government.
	Before coming on to financial penalties, perhaps I may say that the point about youth cautions—this is something that I should have thought would be generally approved of across the House—is that they keep young people away from being prosecuted. However, you cannot keep young people away from being prosecuted for ever, and there is, as noble Lords will know, a hierarchy in youth offending. The reasons for our approach of saying that you could not get a conditional caution if you were a youth who already had a conviction were explained fully when the Bill was debated. The short answer is that there are various out-of-court disposals for a young person. There is a reprimand or a warning and a youth restorative disposal, which are not available for adults. The system is essentially hierarchical. Once the matter is so serious that a young person is convicted before a court, the other, less serious out-of-court disposals should, in our view, no longer be used. Such a system does not apply to adults.
	A criticism has been made by the noble Lord, Lord Thomas of Gresford, that the new financial penalty, which will be piloted rather than brought in across the country, is somehow a step too far for prosecutors to be able to award. There has been no youth conditional caution until now, but for adults that same prosecutor has been able to make rehabilitative orders, which is something that the court would normally do, or reparative orders, which in some ways are punitive, such as payments of compensation, letters of apology, reparative unpaid work, restorative justice, and so on. All those matters are under the original conditional caution that the noble Lord said his party supported in the 2003 Bill. The prosecution is able to impose them, as it were, on someone prepared to accept a conditional caution. The noble Lord's party was happy that the prosecutor should do that. It seems that the point beyond which it is not happy is when there is a financial penalty as well. Any defendant can refuse to be cautioned and can ask for his or her day in court. They are entitled to do that, which is an essential safeguard under our system.
	There is a limited discretion to set levels of financial penalties. They can be set either at a standard or mitigated level. I have already referred to the point about knives. Conditional cautions are paid or prosecution will follow. Penalty notices have issues with payment. Means are taken into account unlike what happens when there is a penalty notice in its stead.
	There are virtues in having conditional cautions as they prevent young people being prosecuted for offences. We do not want them to be prosecuted unless it is necessary. The youth conditional caution is not a new power of summary punishment, representing a fundamental constitutional change. We know that the police already issue fixed-penalty notices and other on-the-spot fines to offenders either on the street or at the police station. Others who accept these notices have to pay the set amounts required and are automatically diverted from prosecution in the courts when they do so. This is a logical extension of powers that already exist and which work pretty well.
	Of course, there will be many cases that can be dealt with only by the courts and, as I have said, the offender always retains the option to be prosecuted by the court rather than accept a caution. We believe that adult conditional cautions have worked pretty well so far. Parliament was happy that a youth conditional caution was one of the arrows that could be used to try to divert young people away from further crime. On that basis, I invite the House to accept these statutory instruments.

Lord Thomas of Gresford: The Minister has not referred to the monitoring that was mentioned by the noble Earl, nor has he referred to publicity. There is a public element to this. These conditional cautions will be issued by the prosecutor without any element of publicity, which is possibly one of their attractions, as opposed to going to court. Does the Minister think that anything can be done in that regard?

Lord Bach: I do not think that it is possible to do anything in terms of young people, and I am not sure that the noble Earl would want that. We are prevented from naming the young person involved. All we can say is that "a young person" received a youth conditional caution, which would not assist anyone. For adults, I suppose that it would be possible to publish the names of people who had not been prosecuted but who were subject to a conditional caution. I understand that they would be rehabilitated within three months of that caution in any event. Again, I suppose that it would be possible, in theory at least, for such a caution to be mentioned in a local newspaper, but I am not sure that that is what we want.

Lord Thomas of Gresford: I am concerned not so much with publicity but more with monitoring to ensure that there is some parity in their use across the country. That issue was raised by the Magistrates' Association in its letter.

Lord Bach: I understand that point. There should be parity in how these cautions are implemented and there is no reason to believe that there is not. There are strict conditions on what can be awarded, in terms of financial penalty at least, against someone who is subject to a conditional caution. I think the noble Lord is asking whether some areas use these rather more than others. I do not have information but will write to all those who have spoken in the debate if I can get some further information on these issues.

Baroness Seccombe: With regard to the release of the latest offender management statistics, is there a problem? Can the Minister give us any further information today?

Lord Bach: I am sorry not to have replied to the noble Baroness earlier on that point. I do not know whether there is a problem, and neither do my officials. In the letter that I will be writing, I shall try to give the latest information. I beg to move.
	Motion agreed.

Criminal Justice Act 2003 (Conditional Cautions: Code of Practice) Order 2009

Copy of the Order
	21 Report from the JCSI

Motion to Approve

Moved By Lord Bach
	That the draft order laid before the House on 8 July be approved.
	Relevant Document: 21st Report from the Joint Committee on Statutory Instruments.
	Motion agreed.
	Sitting suspended.

Apprenticeships, Skills, Children and Learning Bill
	 — 
	Committee (8th Day) (Continued)

Schedule 8 : Sixth form college sector
	Amendment 215A had been withdrawn from the Marshalled List.
	Amendment 216
	 Moved by Lord De Mauley
	216: Schedule 8, page 188, line 23, leave out "five" and insert "two"

Lord De Mauley: My Lords, Amendments 216 and 218 are derived from concerns raised by the Association of Colleges in relation to Part 6, which gives separate legal status to the 93 sixth-form colleges and places them under the control of the DCSF. Those concerns arise from the fact that the clause will require sixth-form colleges to have a closer relationship with their local authorities than is proposed for other colleges.
	Perhaps your Lordships will forgive me if I deal with Amendment 218 before Amendment 216. Amendment 218 would mean that the responsible local education authority could use its proposed power to appoint a member to a governing body of a sixth-form college after,
	"consultation with the said governing body".
	We believe that that would allow sixth-form colleges to retain the independence and autonomy that have been integral to their success. We are concerned that, without that provision, sixth-form colleges may be encouraged to become overly centred on the needs of the local authority and the so-called home centre. We suggest that that would be damaging, because part of the success of sixth-form colleges is due to their ability to recruit across local authority boundaries and become centres of excellence. Although the Bill does not prevent that, we are concerned that too many ties to the local authority may result in the sixth-form college becoming home-centric and reduce its freedom and desire to recruit from further afield.
	Amendment 216 is in the same vein of flexibility. New Section 33D(3) in Schedule 8 means that an application to convert a sixth-form college corporation into a further education corporation cannot be made by the governing body of the relevant body for a period of five years after the body has been declared a sixth-form college corporation. Does the Minister agree that that is somewhat restrictive? Does she not agree with the assessment of the Association of Colleges that a period of two years might be more suitable? We suggest that that would allow much more flexibility, which is especially important given that much of the reason behind the success of those institutions is their ability to innovate, adapt and utilise the flexibility that their independence gives them. We think that it is important to nurture those traits, which help to develop centres of excellence, not constrain them. I beg to move.

Baroness Garden of Frognal: My Lords, we have some reservations about Amendment 216. We recognise that a sixth-form corporation, as specified in new Section 33E, may have much the same provision as an FE college, so in many cases the conversion may be straightforward. However, two years is a very short time in the life of an academic establishment to test the market and to prepare for and implement organisational and institutional changes. Five years seems a reasonable timescale. As for the governors, one would hope that there would be consultation in every case between the governing board and the LEA. The LEA is proposing to appoint only one person to the board, so we agree that consultation would be desirable, but the Bill could stand as it is drafted.

Baroness Morgan of Drefelin: My Lords, I start my brief remarks by saying that we would like to consider Amendment 218 and to accept Amendment 216, so that those who need to prepare can do so. I am grateful for the interest of the noble Lord, Lord De Mauley, in the issue and am pleased to see that there is agreement around the House, taking into account our discussions earlier in Committee, about the strong and distinctive contribution that our sixth-form colleges make in this country. This is a great opportunity for us to put on record the tremendous work that they do.
	The scrutiny that the amendments have prompted has been extremely valuable in challenging some of our initial assumptions. As we have heard, Amendment 218 would amend new Section 56F, which will give local authorities the power to appoint one or two additional governors to the governing body of a sixth-form college. That is a power that the Learning and Skills Council currently holds. It has used the powers to appoint 51 governors to 33 further education colleges—but always, importantly, as the noble Baroness, Lady Garden, commented, with the agreement of the institution. I recognise the importance of consultation, especially in such an important matter, so I am happy to reflect further on whether a local authority should be required to consult the governing body of a sixth-form college before making an appointment and will return to that on Report.
	As I said, I am also happy to accept Amendment 216, which will reduce the number of years before redesignation can occur from five to two. In response to the noble Baroness, Lady Garden, the point is that redesignation can occur after two years; it does not mean that it must. I note her comments about the need for experience to bed in before a college makes a decision, but it is an interesting proposition to have a two-year rather than a five-year limit. Still, we maintain that the designation process should not destabilise the college sector.
	This short debate has been helpful and important. We know that the sixth-form colleges are broadly supportive of the new arrangements. They believe that giving local authorities, which are primarily responsible for the strategic direction of schools, a major responsibility for the strategic direction of colleges will promote coherence. That view has been voiced by the Sixth Form Colleges' Forum. With that, I am optimistic that noble Lords will accept my approach.

Lord De Mauley: My Lords, I thank the noble Baroness, Lady Garden, for her contribution. Noble Lords will be unsurprised to hear that I am even more grateful to the Minister for her gracious words in accepting Amendment 216 and for saying that she will think further about Amendment 218. We look forward to what she comes up with on Report.
	Amendment 216 agreed.
	Amendment 217
	 Moved by Baroness Howe of Idlicote
	217: Schedule 8, page 195, line 19, leave out paragraph 8

Baroness Howe of Idlicote: My Lords, paragraph 8 of Schedule 8 is five pages long so, if it were removed, it might reduce the Bill a bit. It sets out new powers for local authorities and the Young People's Learning Agency to enable them to intervene in the business of a sixth-form college when it is judged to be failing. This probing amendment would remove all the intervention powers for the YPLA and local authorities.
	The Association of Colleges, which represents sixth-form colleges, points out that they are among the most successful institutions within the education sector; the Minister underlined that in her answer in the debate on the previous amendment. Sixth-form colleges produce excellent exam results, often for the most deprived young people and in the most disadvantaged areas. This is demonstrated by the fact that, between October 2006 and January 2009, 81 per cent of the 80 sixth-form colleges inspected by Ofsted received an outstanding or good grade.
	Sixth-form colleges therefore have a proven record of high performance, so it is, one hopes, extremely unlikely that any sixth-form college will fall victim to the circumstances listed in subsection (2) of proposed new Section 56E of the Further and Higher Education Act 1992. New Section 56E(2)(d) states that a local authority may intervene if,
	"the sixth form college is performing significantly less well than it might in all the circumstances reasonably be expected to perform, or is failing or likely to fail to give an accepted standard of education or training".
	This wording reflects the wording that will apply to the Skills Funding Agency's intervention powers in relation to further education colleges. It would therefore be useful if the Minister could clarify whether the SFA and local authorities are using identical criteria when they determine whether to intervene. How will these criteria relate to those that may be used when local authorities assess the performance of school sixth forms? All three types of institutions will be educating the same age group, so it seems fair that they should be judged on the same basis before the relatively serious step of intervening in the affairs of an autonomous institution is taken.
	As I understand it, when intervening, local authorities will be able to remove all or any of the members of the governing body, appoint new members and give directions to the governing body. New Section 56H also allows the Young People's Learning Agency the opportunity to intervene in the business of sixth-form colleges and take the same steps. It would be useful if the Minister could clarify when she envisages it would be appropriate for a local authority to intervene and when the YPLA should intervene. If she could produce some illustrations of the sorts of situations that might produce that, it would be helpful. I beg to move.

Baroness McIntosh of Hudnall: I should inform the Committee that, if this amendment is agreed to, I cannot call Amendment 218 by reason of pre-emption.

Lord De Mauley: My Lords, it will come as no surprise to the Minister that we share the concerns of the noble Baroness, Lady Howe, about the intervention powers of LEAs and the YPLA in sixth-form colleges. Of course we agree that action must be taken should a sixth-form college's governing body be responsible for unreasonable action or mismanagement of its affairs. Nevertheless, like the noble Baroness, Lady Howe, our concern is that sixth-form colleges should be allowed to be flexible and independent.
	The Association of Colleges has stated that it thinks it imperative for sixth-form colleges to,
	"retain their independence and autonomy as these factors have played a major role in their success".
	Does the Minister not accept that the powers of intervention by the LEA and the YPLA may operate to reduce the flexibility and independence of sixth-form colleges? As I said on the previous group of amendments, it is important to ensure that the possible influence of the LEA and/or the YPLA must not mean that sixth-form colleges become overly centred on their immediate locality. Part of the reason for the success of these colleges is that they can attract students from far and wide across the boundaries of the LEA. Given that resources are finite, we share the colleges' concern that the powers awarded to the LEA by the Bill may lead to sixth-form colleges becoming more limited in their scope and therefore reduce the level of specialisation that has helped to make them such a success.
	Paragraph 8 of Schedule 8 appears effectively to give LEAs the authority to manage the performance of sixth-form colleges and, therefore, interfere when they consider necessary. Further powers of intervention are awarded to the YPLA and, additionally, LEAs and the YPLA are given the right to appoint members to thegoverning body of a sixth-form college. It would appear that the intention is to confine independent sixth-form colleges quite strictly within the remit of the local authority. I appreciate that there are limitations—for example, the LEA must give notice to the Secretary of State and the YPLA before exercising its powers of intervention—but I hope that the Minister appreciates the concern of the Association of Colleges that the specifics of these powers have yet to be laid out in any detail. I hope very much that she will be able to inform your Lordships exactly how these powers will work and offer reassurance that this will not infringe the independence of sixth-form colleges, which we should be helping to support, rather than limit.

Lord Campbell of Alloway: My Lords, having heard what has been said, I support my noble friend on the Front Bench. Education is not my main subject in the House, but having listened to the debate I believe that independence for colleges—Oxford or Cambridge or any of them, although I admit that I happened to be at Cambridge—is crucial. That is the point that my noble friend is making. I do not know anything about education, but it seems terrible that the independence of the universities should be put at risk.

Lord Lucas: My Lords, my main quarrel is with the wording of new Section 56E(2), which is the test that must be passed before a local authority can intervene. The level has been set quite extraordinarily low. For instance, paragraph (b) states,
	"that the sixth form college's governing body have failed to discharge any duty imposed on them by or for the purposes of any Act".
	In other words, perhaps it has thrown out a newspaper with the general rubbish rather than recycling it. The LEA can have a tiny excuse for taking total control of a college. There is no appeal and no effective reference to any other body because, although the Secretary of State can set out guidance, all the LEA has to do is to have regard to it. We know exactly what that means: look at it and then ignore it. That happens in many other cases of government guidance. A sixth-form college can take no effective action other than to go to law, but, given the immediacy of this, its finances are presumably frozen the moment the LEA steps over the doorstep and it will have no ability to apply for judicial review. It is an extraordinarily low test when it ought to be a high test. Under paragraph (d), for example, it has to be performing significantly less well, which surely should be set in terms of some Ofsted judgment rather than just at the whim of a local education authority officer.

Baroness Morgan of Drefelin: My Lords, I want to make it very clear that the intention here is very much to be in step with the aspirations of sixth-form colleges. As noble Lords will be aware, sixth-form colleges have always had a distinct character and ethos, and I am sure they would argue better than me that concentrating on their core functions of providing 16-to-19 education and training has given them the focus that has allowed them to do tremendously well, as the noble Baroness, Lady Howe, said so eloquently.
	I support the noble Baroness's assertion that it is important that institutions that look after children and young people of the same age are judged on a similar basis. This is what we are trying to achieve; I have already referred to the framework for excellence that is being developed in consultation with BIS, the DCSF and professional partners. The Government respect the independent status of sixth-form colleges, and designation as a sixth-form college will not change that status. As they are now they will remain: as incorporated colleges run by their college corporations, not by the local authority.
	These powers of intervention, on which the probing amendment tabled by the noble Baroness, Lady Howe, focuses and would remove, are currently held by the Learning and Skills Council. The LSC has used the powers that are being incorporated in this Bill extremely infrequently, but they remain necessary as a tool of last resort because the implications of those extremely rare cases of educational failure or institutional mismanagement can be dire for the life chances of learners.
	We intend to transfer the responsibilities that the Learning and Skills Council now holds for sixth-form colleges to local authorities and the YPLA, with the same safeguards that are in place now. Local authorities will be able to consider intervention only if certain thresholds that are set out in the Bill and to which noble Lords have referred are met. Local authorities will be required to follow a national intervention policy which the YPLA will consult on and publish. The YPLA will also submit that policy to the Secretary of State. If he approves it, it will be laid before both Houses of Parliament.
	The noble Baroness, Lady Howe, asked specifically about the criteria that the Skills Funding Agency would use in an intervention. I put on the record that in deciding whether to intervene, criterion D in new Section 56E of Schedule 8 allows the local authority to judge how the sixth-form college is performing. This must take account of the circumstances of the college. The same duties are placed on the Skills Funding Agency in respect of FE colleges that it performance-manages. Therefore, we will apply a consistent approach across all sectors, which I know the noble Baroness is keen to achieve.
	The noble Baroness also asked about the role of the YPLA. The YPLA's powers of intervention, which mirror a local authority's powers, are, as I have said, a fallback only. The YPLA could intervene in a sixth-form college only when two conditions have been met: first, if it was already intervening in the relevant local authority because the authority was failing in its core duty; and, secondly, if a sixth-form college in that authority was behaving in a way that caused the YPLA to conclude that one of the high-level conditions set out in Schedule 8 has been met. This would be an extremely rare set of circumstances.
	The noble Lord, Lord Lucas, was concerned that sixth-form colleges could do nothing in response to this process. There is a detailed process of discussion between the local authorities and sixth-form colleges in subsections (4) to (6) of new Section 56E, which he has already probably found his way to, but, again, in the interests of clarity, I will write to noble Lords in my best handwriting, or even using a typewriter, about how that could work.
	I will be absolutely clear: we are advised time and time again that the sixth-form colleges are keen to move forward with this. With the reassurance that I may have been able to offer the Committee, perhaps the noble Baroness will feel able to withdraw her amendment.

Lord Lucas: I have a couple of points to make about what the Minister has just said. She talked about a detailed process of discussion in subsections (4) and (6). Yes, I would like to hear further from her on that because subsections (4) and (6) appear to be pretty swift and pre-emptory and do not involve discussion but simply, "Right, we're coming in. Bang". There seems to be no provision for discussions or timescales in the Bill in front of me.

Baroness Morgan of Drefelin: I would be very happy to say at the Dispatch Box that I would not expect there to be anything other than full and generous discussion with sixth-form colleges, even where a sixth-form college may be struggling. It is important, however you operate in local government, that you deal respectfully with institutions. I am sure that the noble Lord would want that on the record.

Lord Lucas: My Lords, I entirely agree that that is how it should be; I just do not see it in the Bill. The other thing that I cannot find in the Bill is what the Minister referred to as the national intervention strategy, which she said would be drawn up by the YPLA and with which LEAs would have to comply. Again, I see that nowhere in the Bill. It would be a sensible way of conducting things to have a set of rules that have to be followed and that add a rational gloss to the hair-trigger conditions that are set out in the Bill. I am sure that I have missed pages, but I cannot find it anywhere and I would be grateful if she could point it out to me.

Baroness Morgan of Drefelin: My Lords, it is in new Section 56G, and I have a copy of it here. It is the Learning and Skills Council statutory intervention policy, which states:
	"Presented to the Houses of Parliament pursuant to section 56B of the Further and Higher Education Act 1992 (as amended by the Further Education and Training Act 2007)".
	That is a policy statement. I feel it necessary to offer the noble Lord clarification in writing as to where this is updated in the Bill.

Lord Lucas: My Lords, I am confused because the noble Baroness said that local authorities would have to follow this, but it is just guidance. It is set out in secondary legislation, for instance, that cameras should not be used to enforce parking violations. Local authorities are supposed to have regard to that, but Westminster has 200 such cameras. It is set out in both guidance and regulations that controlled parking zones should be signed in particular ways, but only round 20 per cent of the controlled parking zones in Westminster have even half of the signage correct. Local authorities are used to the process of having to have regard to things. I am sure that they behave themselves, but a lot of the time they totally ignore what is set out in guidance. What I am after is something saying that they shall behave in a certain way rather than that they should have regard to such behaviour. Perhaps the change I am looking for is to amend the end of new Section 56G with wording to the effect that local authorities must "act in accordance with" rather than "have regard to".

Baroness Morgan of Drefelin: New Section 56G states:
	"Intervention policy: sixth form colleges
	(1) The YPLA must—
	(a) prepare a statement of the policy to be followed by local education authorities with respect to the exercise of their powers under section 56E",
	which is about intervention. It must also,
	"(b) keep the statement under review, and
	(c) if it considers it appropriate in consequence of a review, prepare a revised statement".
	The new section goes on to give a detailed description of the intervention and how it must be fulfilled.

Lord Lucas: Yes, my Lords, but in the end we see the words "have regard to" at the end of the section. In other words, local education authorities can completely ignore it and do whatever they want, as long as they have read the guidance first. A minor indiscretion can trigger this power from an LEA's point of view. An infringement of any Act of Parliament can do it. What sixth-form college does not infringe an Act every year? We all do so. There is so much legislation that you cannot but fall foul of a minor provision in some Act every year. Most of these things one glosses over, puts right or never notices, but any change can trigger the right of LEAs to intervene. Because Section 56G only requires the LEA to "have regard to", there is nothing to stop them.
	The only remit of the Learning and Skills Council was to look after the funding and quality of sixth-form colleges. It had no other interests that might bring it into conflict with the policies being pursued by those colleges.

Baroness Morgan of Drefelin: What I have perhaps not made clear is that we are taking the experience of intervention gathered by the Learning and Skills Council and enacting it here under the new YPLA and SFA set-up.

Lord Lucas: Yes, I entirely understand the Minister. These powers were appropriate when they were given to a body that could be presumed in all cases to be entirely impartial in the way it acted because of the narrow focus of what it did. Now they are being given to a body with a whole multitude of other interests which it might want to pursue and bring to bear on sixth-form colleges. That is why a straight translation of these provisions will not do. I hope very much that I will have the support of my own and the Liberal Front Benches on this, because we will certainly come back to it on Report.
	There has to be a measure of sense imposed on this. Like the Learning and Skills Council, the YPLA is a body that does not have a lot of other interests. If the document prepared by the YPLA was binding on local authorities, I should be completely satisfied, but sixth-form colleges will be left at the mercy of LEAs. The noble Baroness knows that this will not be translated into action, but in many cases into threats of action. Authorities have governors on boards and very quickly they will come to know which sixth-form colleges have made themselves vulnerable under the extraordinarily hair-trigger arrangements set out in the Bill. They will then have the power to say, "You will do exactly what we say or we will come marching in and there is nothing you can do to stop us". That is not the right basis for a relationship.
	There ought to be more distance between the two because local education authorities have so many other fish to fry and reasons to want to intervene in the minutiae of what a sixth-form college is doing—perhaps, as they see it, to make the college work more efficiently with schools or blend with other policies—simply to satisfy the particular political predilections of the local authority at the time. That did not apply to the Learning and Skills Council but does so to all LEAs, and sixth-forms colleges must have protection.

Baroness Morgan of Drefelin: Perhaps I can put this into perspective. First, sixth-form colleges are happy with these proposals, and it might be helpful to make the Committee aware that the Local Government Association has agreed a protocol with the Sixth Form Colleges Forum which includes, among other things, how performance management and intervention powers will operate. We need to bear in mind that a lot of very hardworking and successful sixth-form colleges would like to go ahead and have for the first time in history a special legal status of their own. It would be a great disappointment to them if we were to pour cold water on that little bit of progress.

Lord Elton: My Lords, I am doing what my noble friend has suggested, and I am not pouring cold water on anything. I want to illustrate the importance of legislation saying exactly what is meant and exactly the outcome that is wanted. There is an analogous case here. The former Mayor of London was subject to a statutory requirement to consult on extending the area of the congestion zone. He did so and the response was 85 per cent against, but he did it.

Lord Lucas: My Lords, that is exactly the point. I am not seeking to destroy this provision but, having listened to what the noble Baroness and other noble Lords have said, we should remove from new Section 56G(7) the words "have regard to" and put in something to the effect that LEAs must follow the rules set out in the document so carefully provided by the YPLA. In other words, whatever rules evolve out of the process of discussion under Section 56G and are then agreed by Parliament, should be followed. To rely on a concordat between an unofficial gathering of local authorities and sixth-form colleges to govern these relationships is extraordinary. As I say, I hope very much that I will have the support of both Front Benches when we return to this issue on Report.

Baroness Howe of Idlicote: My Lords, this probing amendment has produced quite a lot of thought and activity, and I thank all noble Lords who joined in the debate. Who knows, out of it may come some even more concrete proposals than those which the Minister was kind enough to spell out. I am pleased that regard will be given to the autonomy of these institutions. Of course there must be an ultimate fallback position if an institution is failing so that something can be done about it, but given that many of them are doing well, we hope that that will not happen in many cases.
	We will all read every single word of what has been said in this debate to see whether further actions should be taken on Report. This was a probing amendment—it was meant to be so because that is what the Association of Colleges wanted it to be—and we shall have to consult and see what its views will be by the time we get to Report. I thank the Minister for the careful consideration that she has given to the amendment.
	Amendment 217 withdrawn.
	Amendment 218 not moved.
	Schedule 8 agreed.
	Clauses 123 and 124 agreed.
	Schedule 9 : The Office of Qualifications and Examinations Regulation
	Amendment 219
	 Moved by Baroness Walmsley
	219: Schedule 9, page 202, line 3, leave out "Secretary of State" and insert "Crown"

Baroness Walmsley: My Lords, I shall speak also to Amendments 220, 221, 222, 223 and 224A. We now come to consider Ofqual, the new Office of the Chief Regulator of Qualifications and Examinations, which, under this legislation, is now to stand alone purely as a regulator, with the duty to develop the curriculum to move to the QCDA, about which we will speak later.
	There is no doubt that there is a need for a strong, expert and independent regulator, who can speak up for learners on the standards and range of qualifications available to them. It is vital also to employers, further and higher education providers and, indeed, the whole economy that we have such a regulator. In Kathleen Tattersall as the new chair we clearly have an expert with experience and determination. We wish her well and thank her for the copy of her letter to MPs during the Committee stage in another place in April this year; it was most helpful.
	It is clear that to be successful the chief regulator will need all the help she can get and as little interference as possible. That is the basis of the various groups of amendments that we have tabled which we are about to debate. One of the key duties of the new Ofqual, in Clause 125(4), is to,
	"promote public confidence in regulated qualifications and regulated assessment arrangements".
	One glance at the newspapers during August, when the public exam results are published, will make clear the need for someone to do this. Sadly for all those young people and teachers who have worked so hard to achieve their results, every year we have doubts expressed about whether the standards of the various grades achieved are comparable to similar grades last year and the year before, or even the decade before. We also find questions about the assessment arrangements and how rigorous they are. Questions arise about the balance of exams and coursework, multiple choice questions, and the depth of probing of the knowledge found in the exam paper. It is very important that this comes to an end. Candidates for exams have a right to know what they have achieved when they reach certain grades and their potential employers need to know that too.
	That is why we believe the independence of Ofqual is so vital. If the Government are allowed to interfere with its work there will always be questions and doubts about whether results have been manipulated to make the politicians who happen to be currently in charge look good. This applies to all parties, not only the current Administration. I say to the Government that what we are trying to achieve by tabling these amendments is for their own good. I am sorry if I sound like their maiden aunt when I say that. The medicine may not taste nice but I can assure them that it will do them good. More importantly, in this global employment world, it will be good for learners and their opportunities in the global marketplace.
	Let us look at what the Government are offering to us and see whether it measures up to a strong, expert and independent Ofqual with the power to use good advice wherever it is to be found. First, we need to look at Schedule 9, where the arrangements for the appointment of all the Ofqual personnel are to be found. There we see that the Secretary of State can appoint all the board members and the chief executive; he will also appoint the deputy chair. The chair is a Crown appointment but I doubt if Her Majesty would appoint anyone unless she had been advised who by the Secretary of State. He will also decide the terms and conditions of service initially and approve them subsequently. This is a recipe for political meddling and the placing of people who will do as the Secretary of State wishes. This is not a recipe for a strong, independent organisation.
	Of course, initially there is no alternative but to have the first chair appointed by the Crown on the advice of the Government. However, there is no reason why all the members should not also be Crown appointments and subject to the same public appointment scrutiny. That is our Amendment 219.
	Amendment 220 suggests that the ordinary members themselves should elect a person to act as deputy to the chair rather than the Secretary of State doing so. This is quite frequently done on boards. Amendment 221 allows them also to remove that person if they feel it necessary.
	Amendments 222 and 223 allow the Ofqual board, under its chair, to appoint its own chief executive and determine his or her conditions of service. In most large organisations it is usual for the sitting chair, acting with the board, to decide who should be the chief executive rather than having someone foisted upon them. In that way we can be sure that they will have total confidence in that person, which they must do in order to work smoothly together. Of course they would have to work within the budget given to them in relation to the remuneration of that person, but they would have discretion in the matter.
	Amendment 224A is there in case your Lordships' House does not approve the other amendments in the group. It would require the Secretary of State, in carrying out his functions in relation to the appointment and conditions of staff, to seek the opinion of Parliament. We envisage this would be in the person of the DCFS Select Committee or a combination of appropriate select committees among the movable departmental feast to which we have recently been treated. Your Lordships will notice that we have withdrawn Amendment 224.
	By approving this group of amendments, your Lordships would give Ofqual considerably more independence from Ministers right from the start and give it the opportunity to work to deserve the confidence of the public, which I know is what the Government want as well as the Opposition Benches. I beg to move.

Baroness Verma: My Lords, noble Lords will be aware that we have long called for a regulatory body. We welcome the Government's agreement on this matter and are delighted that they have taken our views on board, bringing forward the Bill to put Ofqual on a statutory footing.
	Concerns about the standards of education in our country have occupied reams of newspaper coverage and hours of parental concern, and have caused disquiet in the public sphere. We have therefore called for a body to be in charge of regulating those standards to ensure that, as standards rise, the public can be assured about the quality and rigour of our exam system. We welcome the Government's agreement on that point and look forward to enshrining Ofqual in legislation.
	We believe, however, that there are improvements to be made to the structure of Ofqual in the Bill. That is why we have tabled Amendment 220A, which would ensure that an ordinary member of the Ofqual board should not have any financial or occupational interests that would give rise to a conflict in Ofqual's objectives. We on these Benches think that it is important to ensure that Ofqual is fully independent of educational bureaucrats.
	So that we are not misunderstood, I would like to make it clear that this does not preclude the participation of those involved in academia and industry. On the contrary, we would actively encourage the involvement of these people. They would be able to provide the help and expertise to form a truly rigorous and effective exam system. However, those involved should be entirely independent of those in the educational establishment who have a vested interest in portraying standards as being maintained or even rising. The public's perception of exam results has been tarnished by successive years of Ministers assuring the public that standards are rising, despite more and more evidence to the contrary. We need a regulator that will provide honest and impartial assessments of standards. I look forward to the Minister's response.

Lord Sutherland of Houndwood: My Lords, I am pleased to welcome this section of the Bill. I agree with those who have spoken so far that an independent regulator is essential for public confidence, as well as for the quality of education that pupils in schools have available to them.
	All seven of the current group of amendments are, like the curate's egg, good in parts. I will now—briefly, I hope—give my version of which parts are good and which, perhaps, are less good. It is not a black and white matter in most cases; rather, it is that there are shades of balance and opinion. I shall quickly run through them.
	In Amendment 219, to summarise quickly, it is somewhat over the top to have all members appointed by the Crown. This might complicate things, and it might take away from the important position of the chair of this body. That is my reaction there.
	In Amendment 220, however, there is a good balancing effort. The suggestion that members may elect their own deputy has much to commend it. If one takes that view, it follows that one would support Amendment 221, which relates to the continued tenure in office of the deputy.
	Amendment 222 specifies that we leave out the Secretary of State in line 23 on page 203 of the Bill. It is inevitable that the first chief executive will have to be appointed by one form or another through the Secretary of State's office, and it would not add much to strike that out from this part of the Bill. Ofqual may not be fully in existence until a chief executive is formally appointed. It is reassuring that, further down, the appointment and conditions of service of a later chief executive are subject to the approval of the Secretary of State, which is rather a different matter from making the appointment. So I am less happy about Amendment 222 as well as Amendment 223, which deals with the same point.
	My reaction to Amendment 224A is that this is a much broader question than simply the appointment to this particular post. It is an issue that comes up in a number of contexts in this House: parliamentary scrutiny of public appointments. There is a discussion to be had about that as a principle, but if we were moving in that direction, I do not think I would start here. I would prefer to see this appointment through and Ofqual in process, rather than what might turn out to be fairly long-drawn-out scrutiny by committees of various kinds. If you have that in position, it is a different matter and you can perhaps deal with it fairly promptly.
	I fully support the emphasis behind Amendment 220A, which has to do with transparency and disinterestedness. However, if one were to apply it as it is written out, leading as it would—as I think has been agreed—to the exclusion of all who have professional knowledge of examination, teaching and assessment, I wonder whether that would be a good thing.
	A number of committees of your Lordships' House might find applying such a criterion rather difficult in so far as it would exclude from them some very important members who have an interest—members who currently can declare that interest and who can step aside if it is financial. It might also exclude those who have occupational and professional expertise that would in due proportion be very helpful to a body such as Ofqual. However, that being said, I support the direction of the Bill and hope that we can make good speed with it.

Lord Ramsbotham: I listened with great interest to my noble friend Lord Sutherland, with his expertise in this subject. I am particularly pleased to support the intention behind the amendments because of the one word which the noble Baroness, Lady Walmsley, kept on mentioning: "independence". I say that with some feeling, having been an independent inspector—not a regulator. You must be independent of the Secretary of State to the extent that you are not subject to direction as to what you are doing. I am interested that "Crown" is used in the amendment. I was a Crown official, not anything else, which meant that I was independent. That is important because the regulator should feel absolutely free to speak up and make comments—and criticisms if necessary—in public without any fear, favour or problem of being a civil servant and therefore accountable to a Minister. You will not have a proper regulatory system, for which I think there is approval on all sides of this Committee, until and unless the independence of the regulator is totally guaranteed. It is unfortunate if all the members of the regulatory body are selected by the Secretary of State. The regulator should be able to select people to form part of the regulatory body based on their own experience and their own knowledge of the kind of people they need on their staff to carry out the role and responsibility. I therefore very much welcome the intention of the amendment, although I can see that there may be some hurdles to overcome on the way to getting to what I think is the best solution.

Baroness Verma: My Lords, perhaps I may respond to the noble Lord, Lord Sutherland, who was concerned that my amendment would exclude experts from academia and industry. I said from the outset that we would actively encourage the involvement of such people. They would be able to provide their help and expertise in forming a truly rigorous and effective system. The amendment would not exclude them; it would make them part of the process.

Baroness Morgan of Drefelin: My Lords, I am delighted that we are now moving on to debating the establishment of Ofqual. I would always be delighted to take lessons from a maiden aunt; I would love to have one. I was interested in the remarks of the noble Baronesses, Lady Walmsley and Lady Verma. I am grateful also to the noble Lords, Lord Sutherland and Lord Ramsbotham, for their words of wisdom. We are very privileged in this Committee to have such a wealth of experience and knowledge to draw on in our deliberations.
	I am glad, although not surprised, that there has been such a widespread welcome in the Committee for the establishment of Ofqual in this opening debate on Part 7. That welcome has been given outside the House, too.
	Qualifications are at the heart of the education and skills system. They recognise and reward achievements for young people as they complete their full-time education. They are central also for adults looking to strengthen their vocational skills. As the noble Baroness, Lady Walmsley, reminded us, a qualification's currency is its credibility. Ofqual will need to be independent to give credibility to the qualifications it regulates, which is what the legislation is all about. The Bill provides for Ofqual to be a robustly independent regulator, which, as the noble Lord, Lord Ramsbotham, made so clear, is essential.
	The most important aspects of Ofqual's independence relate to its powers and accountability, and how it uses those powers in practice. We will no doubt debate those later, but we will start by looking at appointments. I begin by tackling head-on the question implicitly—perhaps explicitly—voiced by a number of these amendments on whether Ofqual's independence is affected by the responsibility of the Secretary of State for appointing ordinary members of Ofqual. The answer is no, for three reasons. First, the experience of Ofsted shows us that having a board appointed by the Secretary of State is entirely consistent with a reputation for fierce independence. Anyone reading the media today and hearing the news about serious case reviews, which I am sure we will discuss later, will recognise how fiercely independent Ofsted is. That is why Ofsted was our starting point when developing the governance arrangements for Ofqual.
	Secondly, we intend that these will be public appointments regulated by the Commissioner for Public Appointments. That is not the same as appointments being selected by the Secretary of State. The overriding principle will be selection on merit. From the first public advertisement to the announcement of the names of those appointed, the whole appointment process will be open and transparent. Thirdly, once appointed, Ofqual members must ensure that Ofqual is run in accordance with its objectives. They are not in any way answerable to the Secretary of State. Any Secretary of State who thought that he or she could "fix" Ofqual through some canny appointments would be sorely disappointed.
	The appointments to Ofqual will be highly significant. We will be looking for a rich mix of tough, independent-minded people with the skills to give Ofqual the leadership that it needs to develop into an independent, credible and authoritative regulator. The fact that they are Secretary of State appointments reflects and reinforces the importance of these roles. It is important to say that Ofqual will have to have procedures in place for declaring and managing any conflicts of interest, as a matter of good governance and because it would be at risk of legal challenge if decisions were not impartial. So while the amendment proposed by the noble Baroness, Lady Verma, on conflicts of interest raises important questions, I hope that I can reassure her, by giving a little more detail, that it is unnecessary.
	It is important that members of Ofqual should not be subject to conflicts of interest. In particular, it would clearly be inappropriate to appoint to Ofqual anyone with a direct and current connection with an awarding body which Ofqual might regulate. However, there will be arrangements in place to prevent conflicts of interest, with a register of interests, protocols about what to declare and all the usual procedures associated with good corporate governance as well as those associated with being a government department. However, there are many things that, to quote from Amendment 220A, might be "regarded" by some,
	"as constituting a conflict of interest with",
	Ofqual's objectives. Some people might regard a head teacher as having a conflict of interest, but let me say emphatically that I do not believe that that would be the case. What matters most to head teachers, like the rest of us, is that confidence in the system is high, through robust regulations. I absolutely agree with the noble Baroness, Lady Verma, that we need to be clear about conflicts of interest, but I believe that proper systems, processes and declarations will be in place to ensure that they are properly managed.

Baroness O'Neill of Bengarve: Before the Minster moves on, will the public appointments process she describes be one in which two names are put to the Secretary of State, or one name? A great deal of hidden power to shape the composition of public bodies exists when the requirement is to present more than one name for a given position.

Baroness Morgan of Drefelin: I am happy to clarify that for the noble Baroness. I cannot do so right this minute, but I will ensure that I do, either later this afternoon or in writing.
	I am being given inspiration from behind that the process involves one name coming forward. That may provide the noble Baroness with more reassurance, but I am happy to clarify the exact process to the Committee in writing if that is of any assistance.
	The amendment on conflict of interest would be unnecessary.
	The noble Lord, Lord Sutherland, talked about many helpful and interesting things, particularly the appointment of the deputy chair. Members of the Committee have been concerned about this, and I would be prepared to consider Ofqual having the power to choose its deputy chair from among its appointed members. As I have said before, when preparing the Bill we took the view on balance that the Secretary of State should appoint the deputy chair. However, there is a strength of feeling around the Committee that we need to emphasise independence further. Given the strength of feeling expressed on this, we would consider looking at it further.
	The noble Baroness, Lady Walmsley, talked about Crown appointments, Amendment 219 and whether all board members should be appointed by the Crown and not the Government. Again, the experience of Ofsted is reassuring here. Ofsted has a Secretary of State-appointed board and is widely seen as robustly independent, as I have said. On what is perhaps more of a point of detail, it would, as far as we have been able to establish, be unprecedented for the Crown to appoint all the ordinary members of a board on a body like this, particularly when we can point to Ofsted as an example from which we can draw experience.
	The responsibility for appointing the first chief executive is given to the Secretary of State simply to allow Ofqual—and this is important—to be up and running quickly. If not, we would have to wait for the members of Ofqual to be appointed before the process of appointing the first chief executive could even begin. I can provide reassurance on how the first appointment will happen in practice. Working with the chair of interim Ofqual, Kathleen Tattersall, we intend to make an interim appointment of the first chief executive. Once established, Ofqual will then take full control of recruiting its first permanent chief executive.
	We have in the Bill a coherent set of arrangements to ensure that Ofqual has the leadership and management it will need to meet its important objectives independently and effectively, and to enable it to be up and running as soon as possible. We take seriously the need to ensure that we have an independent, strong regulator to fulfil these important objectives. I hope that, with these reassurances, and the commitment to consider further, the noble Baroness will feel able to withdraw her amendments.

Baroness Walmsley: I am grateful to the Minister for her words and to other noble Lords who have taken part in this debate. Given what I have been trying to do, I would have been terribly disappointed if I had not been accused of going over the top. Indeed, I am most grateful to the Minister for saying that she would at least consider the issue of the deputy chair. The deputy chair will, of course, stand in the position of the chair on occasions. If that person has been given the support of the board, that will be all to the good. I am grateful to the noble Lord, Lord Sutherland, for expressing his support for that idea. I understand the noble Lord's point about the whole board being made up of Crown appointments. As the Minister said, I am quite aware that there is no precedent. Given what the noble Lord, Lord Ramsbotham, said about the independence that a Crown-appointed person feels, that is why we wanted to give that element of a feeling of independence, and the confidence that it brings, to the whole board. However, I accept that there is no precedent for that, and that Ofsted has proved to be independent, so we will certainly consider what has been said about that.
	I am interested in the idea—suggested, I think, by the noble Lord, Lord Ramsbotham—that the chief regulator should be able to add appropriate people to the board. Between now and Report we will look at that idea and see if we want to bring forward further amendments to allow that to happen if it were appropriate. I am grateful to the noble Baroness, Lady O'Neill, for asking her question. The office of public appointments is still young; its processes are still embedding. That is why we have not felt total confidence that the process will produce a wholly independent board that cannot be influenced by the Secretary of State. I am encouraged, however, by what the Minister said about the first chief executive being an interim appointment. If that is to be the case, I think I will bring forward an amendment on Report to put the word "interim" in the Bill, which would make me happier. It certainly gives me some reassurance to know that it will be an interim appointment, and that Ofqual itself will appoint the first permanent chief executive, in so far as these appointments are ever permanent.
	I am most grateful to all Members of the House for their thoughts, because it has certainly moved on my thinking as to how we will take this issue forward. We probably will in some way. I look forward very much to hearing what the Minister comes up with in relation to the deputy chair. I encourage her to do her best to accept that idea. In the mean time, I beg leave to withdraw the amendment.
	Amendment 219 withdrawn.
	Amendments 220 to 224A not moved.
	Amendment 225
	 Moved by Lord Lucas
	225: Schedule 9, page 205, line 35, at end insert—
	"( ) Ofqual may require the Higher Education Statistics Agency to arrange for collection of, and to provide for Ofqual, such data as it may specify.
	( ) Ofqual may promote and fund research and sample testing."

Lord Lucas: My Lords, the purpose behind this amendment is to make sure that Ofqual, which is an organisation that I thoroughly support, has the powers necessary to make a proper evaluation of the quality of examinations. There is a great difficulty in judging the quality of an examination from within the examination system itself. For instance, if you have two GCSEs in French from different boards and you can see from the pupil data that the pupils in one are doing much better, relative to their other educational attainments, than the pupils in the other, you cannot, of itself, tell whether one of those examinations is easier or whether one of them is better, in that the way it is set out and the educational material with encourage its pupils to excel. The only way in which you can get at that information is to look outside the examination system.
	With GCSEs that is easy; you watch what pupils go on to do at A-level. For example, how many of them take French and how they do in it, particularly those who are taking French with different boards or in different ways? That enables you to form a picture of whether the excess performance, as it were, in one examination is laudable or is something about which Ofqual has to do something in order to tighten up the standards in that exam.
	Amendment 225 would ensure that Ofqual had access to data from the Higher Education Statistics Agency. Without such information, you cannot really get a handle on A-level performance. You need to look at what pupils have gone on to do afterwards, which courses they have chosen to take and how they have done in them, to see whether the A grades being awarded in a particular examination reflect learning and the quality of the student or whether they are created by an examination being in some way made easier than it should be.
	I have dealt with the HESA in a private capacity as the proprietor of the Good Schools Guide and I have found it exceptionally difficult to deal with, unco-operative and unhelpful. I suppose that that experience motivated me to put down this amendment. I have not been disappointed in the letter that the Government got for me from the HESA. It is clearly not an organisation that is accustomed to reach out the hand of comradeship to other parts of government. It very much says, "If you give us a cheque, we'll think about it".
	My advice to Ofqual is that one of the first things that it should do is to write to the Higher Education Statistics Agency requesting that it start collecting proper statistics on which schools students come from. It should connect those statistics back into the student database so that it is possible to track at least a good proportion of students from the point where they gain their qualifications from an English school to the point where they get into university and achieve results in their degree. At the moment, that data collection is extremely lackadaisical, is not undertaken with any sense of dedication or urgency and contains a great deal of inaccuracy. It needs to be of better quality if Ofqual is to be able to do its job. I very much hope that Ofqual will take up the letter from the HESA and pursue it to try to ensure that those data are fit for purpose.
	The second part of the amendment would ensure that Ofqual had the ability to do the research that it needs to look outside mere examination statistics. One thing that has gone against our belief in the maintenance of examination quality is the methods that have been used by the QCA to, in its view, maintain standards. That has been largely a matter of comparing one year's examination results with those of the immediately preceding year. That short-term comparison within a system is always subject to error and those errors tend, in the natural human way of things, to be cumulative. You would expect a system based on that reference to drift over time. I am not surprised that many people think that GCSEs in particular have drifted in that way.
	You need to conduct proper research into the underlying capabilities of students, through sample testing and other investigations, to enable you to look beyond the examination system and to look back in history with some accuracy. When you have a pattern of the requirements of a particular qualification changing over time, you need to have an unvarying reference point that you can go back to in understanding the capabilities of the students taking it. I am concerned that Ofqual should have the power to undertake those investigations. I beg to move.

Baroness Verma: My Lords, in following my noble friend Lord Lucas, I apologise at the outset for the length of notes that this large group of amendments brings. To allow thorough scrutiny of Ofqual, I will reinforce many of the points raised by my noble friend.
	Amendments 230 and 231 are designed to make explicit in the Bill Ofqual's duty to maintain standards in the regulated qualifications. The Minister may argue that this duty is already implicit in the Bill and that there is therefore no need for the amendments. We suggest that they are necessary because they raise two key concerns. First, we are worried that there is a risk that Ofqual could be seen primarily as a PR agency designed to reassure people that standards are consistent or rising, without actually performing an active function to ensure that that is the case. Our worry stems from comments that come from Ofqual. Kathleen Tattersall, the chief executive of Ofqual, said:
	"Ofqual has been set up ... to ensure that there is better understanding of the issue and to assure public confidence".
	We would accept that if assuring public confidence were a consequence of proper regulation and maintenance of standards rather than a primary objective in itself. Can the Minister reassure us that this will be the case?
	Secondly, the amendments draw attention to the difference in our approach to this body. As I understand it, the Government compare the actions of Ofqual to making sure that the height of a specific hurdle remains consistent between comparable qualifications and assessments. We, however, want to take action to improve standards. To be more specific, we would prefer there to be an explicit duty in terms of standards, which would mean not only that the height of the hurdle would be regulated but that there would be a robust examination system that would reject anything that would allow standards to fall. The hurdle should not be lowered.
	We want an examination system that is comparable to the best across the globe. That would mean that our learners were assessed by exams that would offer them the opportunity for a real rise in standards, not just a nice statistic that shows an increase in the number of passes in a devalued exam. This rigorous examination system would help more of our pupils who work so hard to leap over a hurdle that would put them on a par with the world's best.
	We have therefore also tabled Amendment 236, which says that within eight months of being set up Ofqual must publish a report on whether standards of qualifications have been maintained over the past 15 years. This study must include A-levels and GCSEs. We feel that this is a necessary commitment. The Government have constantly told us that standards have risen, yet some of the world's best academics point out that an increase in the number of passes does not mean that standards have risen if the result is just that the exams themselves are easier and the pass mark is lower.
	Does the Minister agree that, if part of Ofqual's remit is to reassure people that standards are being regulated, a report of this nature would be useful? We believe that it is necessary because, as the Minister will be only too aware, we are concerned that standards have in fact been falling. We are worried that we are failing learners who need the right opportunities, the best teaching and exams that will allow them to demonstrate their learning to their fullest potential.
	In my honourable friend Michael Gove's Haberdashers' Aske's lecture, he drew attention to Duncan Lawson from Coventry, who showed that students entering university in 2001 with a B at maths A-level displayed a level of knowledge that 10 years before would have been shown by a student with an N grade or a fail. Professor John Marks, who has been leading a study of GCSE and O-level papers, found that,
	"it is now possible to achieve a Grade C in GCSE mathematics having almost no conceptual knowledge of mathematics".
	He also discovered that,
	"in 1990 the percentage mark on the Higher Tier for a Grade C was just over 50%. However, in 2000 and 2006 the required percentage mark for a C grade had fallen to about 20%: this mark could be ascertained by answering correctly the first four questions on Paper 5 and Paper 6".
	These are appalling statistics. Does the Minister not see that it is important to create an examination system that not only regulates the standards of exams but helps to ensure that children are not failed by an examination system that no longer guarantees them academic excellence?
	For 16 year-olds, the expected minimum standard is five good passes at GCSE, including maths and English. This year, fewer than half of schoolchildren managed to clear that hurdle. We must ensure that standards are maintained at a consistent height between comparable assessments. This is an important concern. We also need to ensure that our assessments are not devalued. We want an examination system that does not allow a progressive decline in standards but upholds them; we need to regulate our exams so that they are comparable to the best in the world.
	We draw attention to the fact that in 2008 Ofqual, as one of its first intervening actions, forced AQA to lower the pass mark for its GCSE science paper to 20 per cent. AQA had refused to lower the mark because it considered that it would not be comparable with standards over time and would devalue the exam. Ofqual, however, demanded that AQA reduce the pass mark and thus the standard of this exam was lowered.
	The noble Baroness, Lady Walmsley, has tabled an amendment stating that Ofqual should be able to direct a specific body at a specific time regarding a specific qualification to set a particular standard. Noble Lords will all be aware that we would agree with the principle behind her provision, as long as Ofqual did not direct the body to lower standards. I very much look forward to the Minister's response and I hope that she can offer some reassurances.
	On our Amendment 316, the Minister and the Committee will be aware that we have been calling for an independent regulator to monitor exam standards and ensure that they are maintained. When David Cameron was shadow Education Secretary, he stated:
	"Reform of the Qualifications and Curriculum Authority is the one such positive step. It is not acceptable that the QCA, the guardian of our exams, is not independent of the Government".
	We believe that the structure and design of Ofqual should be such that the body has powers to ensure that it can uphold strong and appropriate grade boundaries and thus help to guarantee that our exams and our pass marks are comparable to the best across the globe. At the moment, unfortunately, our qualifications system is struggling in a competitive international market. Standards are failing and we must take action to fix this situation. I am sure that the Minister is just as concerned about this as we are.
	This year, 40 per cent of children who left primary school failed to reach the accepted minimum standard for their age in reading, writing and mathematics. In the PISA studies on advanced economies and their educational performance, we dropped from fourth to 14th for science, seventh to 17th for literacy and eighth to 24th for mathematics. This is most dispiriting.
	One of the significant concerns that Michael Gove identified in his speech was:
	"What looks like a great performance in our state-run exams turns out to be below par when compared internationally".
	He raised his concerns about grade inflation, where our students are suffering because, he said:
	"The qualifications we offer are no longer so robust".
	Our worry here is that, while our students and teachers are putting in enormous amounts of hard graft and effort to pass exams, they are being failed by an exam system that cannot give them the freedom to compete in an international market.
	We have therefore asked Sir Richard Sykes, the former rector of Imperial College, to review the system of assessment and qualifications in this country. The main aim behind this is to ensure that our exams are internationally competitive again. It is of the utmost importance to secure these standards to make sure that our children are afforded the same opportunities as those from other countries and are stretched to their full potential.
	These amendments would add a further dimension to Ofqual. They would bring in an international benchmark to which exam standards should be fixed in order to ensure that they remain competitive. Amendment 226 would insert an international duty into Ofqual's objectives. Amendment 232 expands on this to define the international objective as that included in the comparative study that would be brought in by Amendment 316. I hope that the Minister will consider these amendments in a favourable light, addressing both the principle of international benchmarking and the logistics of the amendments.

Baroness Garden of Frognal: My Lords, I will speak to Amendment 260, which stands in my name and that of my noble friend Lady Walmsley. The noble Baroness, Lady Verma, has already referred to it.
	The amendment was put forward by AQA and contains the specific additional power needed for Ofqual to be able to intervene in the rare cases where it is necessary because an awarding body is setting, or intending to set, inconsistent standards. Rapid intervention may be necessary in such cases if Ofqual is to deliver its qualifications standards and public confidence objectives. In the case of the GCSE science examination which the noble Baroness cited, Ofqual intervened to lower the pass mark for the other boards. AQA, while it disputed that it had got the standards incorrect, recognised that each awarding body had used different data and analysis to support its process. It also recognised the broader picture and the importance of key issues relating to standards and how to interpret them; and that technical uncertainty was one reason why every year we have arguments about standards—a tradition that clearly is not in the best interests of young people, because it casts doubt on their achievements. Although in this case it may have seemed a curious process that Ofqual was using, AQA and the other awarding bodies recognise that Ofqual should have this power and be able to use it effectively.
	We support the part of Ofqual's work that involves monitoring standards, funding research and sampling tests—as laid out in the amendments of the noble Lord, Lord Lucas—as well as conducting research that makes it possible to compare standards and performance in England with other OECD countries. However, we have concerns about the very short timescale that the noble Baroness has given—eight months to produce a survey of UK GCSE and A-level qualifications. There is a deal of work there.
	Amendment 316 is interesting. I recall being involved some years ago in an EU-funded project called LangCred, which aimed to set benchmarks for language and skill proficiency across the EU. It identified nine skill sectors, including building, commerce, motor vehicle repair, hotel management, catering and tourism. We had a highly organised Dutch project manager and 12 countries began the work, with four years' worth of EU funding and the authority of the EU behind it. However, at the end only a limited database had been compiled—it was far from comprehensive and merely covered a few qualifications from some participating countries. It was set up in the UK as the first European economic interest group, and had the distinction of being the first EEIG to be wound up four years later.
	There were interesting lessons to be learned from that project. One was that to try to establish internationally recognised benchmarks for qualifications sounds simple and highly desirable, but it consumes enormous time and resources and the end product is not necessarily recognised universally, even with EU backing. The suggestion that Ofqual in its early days might produce anything with that legitimacy is probably not feasible. However, that is not to say that it should not be in a position to commission and fund research and sampling, in order to produce statistics that will shore up our confidence in our qualifications system. Indeed, many studies of comparative qualifications—in particular, in academic and vocational areas—are useful and valued, but in this case we question whether that is the best use of Ofqual's resources and whether it will ultimately get the recognition that it deserves. However, broadly we are very much in favour of the way in which these amendments are going.

Lord Sutherland of Houndwood: My Lords, I happily support Amendment 225. In fact, I think that Ofqual simply could not do its job fully without engaging in forms of research, which would probably include sample testing. I assume that it would be in train to do this but let us be reassured that it has the power, the capacity and, where appropriate, the budget to do so.
	I wholly agree with the spirit of Amendments 230 and 231. Whether they are necessary, I am not completely certain, but it would evidently do no harm to have this emphasised at some point in the Bill.
	However, my reckoning on Amendment 236 is that we have just given the future Ofqual the good news, and it has been warmly welcomed on all sides of the Committee. The bad news is that we are handing it a ticking time bomb that will go off in eight months' time. This is important work which must be done, but saddling a new agency with many tasks to carry out in its first eight months will not help it and will not help it to focus where it should be focusing in its first year of delivery.
	However, I tie that, and the suggestion implicit within it, to Amendment 316, because it may well sit much more happily with a similar proposal to look for international benchmarks. I accept the remarks just made about the difficulty of doing this. It is difficult to produce international benchmarks that will have total confidence even in all parts of the OECD but it is important that we do so. We should test ourselves and our education system against the best in the world and, within that, we should look to see what consistency of standards there has been over the years.
	Perhaps I might add, not completely facetiously, that if one wanted a quick and dirty test in the absence of Ofqual carrying out this survey in its first eight months, I could invite all noble Peers and Peeresses to identify which A-levels they sat and we could all get together to sit the current paper and see how we get on. There may or may not be evidence of a rise or fall in standards—who knows? Seriously, there is an important point here but surely not one that should be dealt with in the first eight months.

Lord Elton: It may be worth mentioning in passing that the volume of knowledge in most subjects is constantly increasing. I remember 25 or 30 years ago Lord James of Rusholme, when vice-chancellor of York University, saying that he had been back to Oxford and had looked at the first degree examination papers. Not only could many of the questions not have been answered in his day but about 20 per cent of them could not have been asked because the knowledge then was insufficient. There is a real problem here down the pipe, as it were, from the universities to the schools in the back-up of knowledge that must be acquired before students are admitted to university. The question is whether the volume of knowledge is allowed to increase with a resulting reduction in quality or whether we would not do better to reduce the volume of knowledge required and increase the time spent at university or the number of stages of degrees. It is a big question but one that will eventually have to be addressed.

Baroness Morgan of Drefelin: My Lords, I am not sure whether it is wise for me to say this but when I did my science degree at university, we looked at various biochemical pathways, and I was really shocked to discover young people looking at these at GCSE fairly recently. The transfer of knowledge from what I studied at university to those at GCSE level in, admittedly, not a short period of time is quite breathtaking and probably worthy of a debate all of its own.
	This has been an extremely helpful and important debate. When I get into the detail of the amendments, I will develop the point that this is not necessarily a debate about whether the standards of the qualifications themselves have been maintained. The contribution of the noble Baroness, Lady Verma, was in itself one of the greatest testimonies for why we need Ofqual. She put so clearly an analysis that I totally reject. However, the process of rejecting it leads to a debate which I believe undermines the achievements of young people, teachers and the education system around the country. It is unhelpful to trade statistics and to go into the issue in such a way. I reject her analysis, but I want to focus on Ofqual and the extremely important questions around the amendments.
	I like the analogy of hurdles, but we sometimes confuse performance standards with the number of young people who get over the hurdles. The Government are committed to increasing the number of young people who get over the GCSE hurdles or the key stage 3 hurdles. In line with our Leitch strategy we want to ensure that we better equip ourselves for the future. When we talk about the height of the hurdle and the number of young people or adults who get over it, it is important to be clear that they are different things. In the Bill we have set Ofqual an objective to maintain the level of that hurdle, so it is a helpful analogy.
	The noble Baroness, Lady Verma, talked in detail about Amendments 230 and 231. These amendments would confuse the clear definition of standards in Clause 125 as they suggest that maintaining standards is something other than what is in the clause, though they do not say what. I know that she tabled these amendments to make some clear points, but they would risk Ofqual getting tied up in legal knots. I heard her concerns about Ofqual becoming some kind of PR agency and must reassure her that nothing is further from the point. We believe absolutely that confidence and understanding flow from Ofqual fulfilling its objectives around standards. It is not about a PR exercise but about doing a great job and maintaining those standards with rigour. It is not a flimsy commitment to PR.
	On Amendment 316, Ofqual will need to have the freedom to decide how best to deliver its objectives to maintain standards, which is what we were debating just now. It must also have the freedom to be accountable for that. I have a number of concerns about the amendment, as it assumes that a single benchmark could be created to enable the maintenance of standards in GCSEs and A-levels. But maintaining standards, as the debate suggests, cannot be done that way. Different exams are taken in different subjects, offered by different awarding bodies in different years. They must be comparable. It is a complex job, which is why we need an expert regulator. Moreover, since a review a few years ago found the English exam system to be among the most tightly managed in the world, we could end up tying standards to a qualification system inferior to ours, which would be a mistake.
	Finally, there would be a substantial price tag attached to such a study. To do it properly could cost a six-figure sum. We need Ofqual to decide whether that is the best way to maintain standards and to be publicly accountable for its decisions.
	Much the same could be said of Amendment 236. Again, it would risk being an unwelcome and expensive distraction and could blur Ofqual's accountability to meet its objectives. Ofqual can set any conditions on an awarding body only if they serve its objectives. We come back to the Bill's structure, which is clearly set out. Given its qualification standard objective, I would expect Ofqual to set conditions specifically relating to the maintenance of standards. Those conditions will need to be framed to allow Ofqual to direct an awarding body under Clause 145 if there is a risk to the consistency of standards.
	I believe that we agree that Ofqual needs to be able to make a direction on standards, but—let me provide absolute reassurance to the Committee—the amendment is unnecessary. What it proposes can be done under the existing wide power to set conditions. Indeed, the amendment would risk cutting the width of what is otherwise a wide power.
	On Amendment 225, the noble Lord, Lord Lucas, referred to discussions prior to Committee. We agree that Ofqual may want to look at higher education data to supplement its other work on standards. It has power to do so. The HESA has confirmed that it will be willing to explore working with Ofqual to provide higher education data to enable Ofqual to carry out its statutory duties. Ofqual already has a power to conduct research under Clause 162. Several noble Lords have mentioned how essential that is. I hope that they will be reassured that Ofqual will be able to decide the research that it wants to fulfil its objectives as clearly set out in the Bill.
	It can use whatever tools it likes to serve its objectives. It could do sample testing, as the noble Lord, Lord Sutherland, suggested. It could get a cohort of Peers together and get us to sit down to do our A-levels again—I cannot think of anything more terrifying, at the moment; actually, maybe I could. If it wanted to do some sample testing to enable reliable qualification standards comparisons to be made, it could.
	To conclude, we need a Bill that gives Ofqual power to ensure that standards are maintained. I reassure the Committee that the Bill delivers that, and I therefore very much hope that noble Lords will feel able not to press their amendments.

Lord Lucas: My Lords, on my amendment, I am grateful, completely satisfied and thank the Minister and her team very much for the effort that they took during the holidays to get us to this position. I am delighted that those on my Front Bench are so thoroughly in favour of the independence of Ofqual. Voting for the independence of bodies such as Ofqual is a hard thing to do in government, but it should be relatively easy to do in opposition.
	I hope that my noble friend will pursue something along the lines of Amendments 230 and 231. It is important to have that clearly set out as an Ofqual objective for the public appreciation of what Ofqual is and where it stands, if nothing else. The importance of that was illustrated by the story my noble friend told of the instruction Ofqual gave to an exam board to reduce the pass mark in an examination. Knowing a little of that story, I suspect it took the right decision, but there should have been someone on the board who would have told it what the public reaction would be and how it ought to be managed. Something the Secretary of State might bear in mind when he is choosing the board is that the members should not all be inward-facing; there should be some outward-facing members too.
	The Minister was wrong when she criticised my noble friend for criticising the 20 per cent pass mark. If I employed a plumber and he said, "Yes, I'm a qualified plumber. I got 20 per cent in my exams", I would not be happy. If 20 per cent is the pass mark in an exam, it is the wrong examination for the question that is being asked. If we want to know whether our young people have a competence in, say, mathematics, we ought to set an exam that requires at least a 50 per cent pass mark. That is where the exam ought to settle. If you are down to a 20 per cent pass mark, you do not know what bit of the 100 per cent the pupil in question has learnt. You are so far off the purpose of the qualification that a pass mark down there does not belong. Just in theoretical terms, my noble friend's criticism of pass marks having got down to that level has a great deal to it. However, I am delighted that the Minister supports independence, and I shall hold her to it when we come to Clause 138. I beg leave to withdraw the amendment.
	Schedule 9 agreed.
	Clause 125 : Objectives
	Amendment 226 had been withdrawn from the Marshalled List.
	Amendment 227
	 Moved by Baroness Walmsley
	227: Clause 125, page 76, line 9, at end insert—
	"( ) the timeliness objective"

Baroness Walmsley: I shall speak also to Amendments 232A, 237 and 254. Before I do so, I shall comment on what has just been said. The noble Lord, Lord Lucas, made a good point when he suggested that there should be somebody on the Ofqual board who understands public opinion and knows how to deal with it. There is nothing wrong with PR companies—I used to work for one—and they are experts in understanding how the public will respond to the message an organisation puts out.
	The Bill contains no duty on Ofqual to carry out its functions in a timely manner. Although I have no reason to believe that it would not do so, I think it is necessary to put Amendment 227 in the Bill among Ofqual's objectives. The noble Baroness, Lady Verma, has a similar amendment—Amendment 243—in this group. There are times when the good offices of Ofqual will be required to move into action quite quickly to adjudicate on qualifications when things go wrong. It is important that we should be able to rely on the chief regulator to report on relevant matters when we need to know, as often young people's whole careers depend on the results of examinations. When things go wrong, it can be disastrous for them. They could lose a whole year at college or university, or lose out on a job if something goes wrong with the recognition of their qualification. That is why Amendment 227 is needed.
	Amendment 277 should be clearly differentiated from Amendment 232A to Clause 125(4), which relates to public confidence. In that subsection, the public need to know that the standards of regulator qualifications remain consistent over time, which is why I have put into the amendment the same phrase, "(including over time)", to be found in previous subsections. The Government might think it superfluous to put it in twice, but, if this is so, perhaps the Minister could reassure us that the public confidence objective is linked to the assessment standards objective.
	Amendment 237 relates to Ofqual's general duties in Clause 126(1). We believe that it is so important to relate Ofqual's duties to the interests of learners that we want to put that in here. Qualifications are not just things by which employers or further education providers can assess an individual's suitability for a certain job or course; they are for the learner himself to know what he has achieved, to act as a matter of pride and self-esteem, and to encourage him to believe that, perhaps having achieved this, he can go further. There must be nothing more demoralising than to work hard for a qualification only to find that there is something wrong with it and that it has been downgraded in some way. That is why this should not be left to market forces. The interests of learners really need to be in there.
	Amendment 254 in this group is also in the interests of learners. This would ensure that if the accreditation of a qualification is withdrawn, there must be a transitional period to allow learners either to complete the course or to arrange to withdraw from it and do something else without being left without options or put out of pocket by having to pay for another course. The amendment would fulfil your Lordships' very famous tradition of changing "may" to "must"—I know that we all like to debate that one.
	Those are the brief explanations of my group of amendments. I beg to move.

Baroness Perry of Southwark: My Lords, Amendment 227 is also in my name, and I shall also speak to Amendment 229, which again is in my name in this group.
	I support very strongly what the noble Baroness, Lady Walmsley, has said about the importance of timeliness. A similar amendment was put down in another place and the Parliamentary Under-Secretary from the DCSF said that there was no reason to make timeliness explicit in the Bill because:
	"Public bodies are under an implicit duty to exercise their functions reasonably, which includes acting in a timely manner".—[Official Report, Commons, Apprenticeships, Skills, Children and Learning Bill Committee, 26/3/09; col. 622.]
	If it is true that all public bodies are under an implicit duty to act in a timely manner, I can say only that an awful lot of them, in the general experience of the public, are not fulfilling their implicit duty. It is extremely important that people are not left hanging for a very long time over something as crucial as decisions about examinations and examination results, and indeed about any queries about examinations. There is nothing more unpleasant or unfortunate, so I very much hope that the Minister will feel able to add this quite simply to the end of line 9.
	Amendment 229 relates to Clause 125, in which Ofqual's objectives are laid down. I have absolutely no quarrel with the excellent list of its objectives, qualification standards, assessment standards, public confidence objective, awareness objective and efficiency objective. I just feel slight anxiety that nowhere in the subsection on Ofqual does it come through clearly enough that one of its objectives must also be to ensure that the interests of employers are reflected. Again, I declare my interest as chair of the City and Guilds Quality and Standards Committee. Ofqual regulates vocational as well as school examinations, and employers are frequently heard to say—indeed only yesterday I heard it from the employers on my committee—that the qualifications with which young people arrive are not always what they need and want. It is essential that we have it in the Bill that Ofqual is concerned with meeting the needs of employers. That applies not only to vocational qualifications, of course, because it is also vital that schools produce the basic functional skills, as we must now call them, that employers are asking for but which in many cases they find that schools have not delivered. I hope, therefore, that the Minister will feel kindly towards these two unexceptionable amendments.

Baroness O'Neill of Bengarve: I have added my name to this amendment. Although in general I believe that it is otiose to require in legislation that bodies are efficient, effective or timely in their actions, it is not entirely so in this case because, as has been explained by other noble Lords, the downside for individual pupils is great in the case of a failure of timeliness. I hope that the Minister might look favourably on the specification that the requirement should be timely.

Viscount Eccles: Buried in Clause 126(6) are the words:
	"In performing its functions Ofqual must also have regard to such aspects of government policy as the Secretary of State may direct".
	In normal circumstances that would be regarded as a hybrid. It is a mixture of a piece of conventional guidance and something giving the power to direct. My question is this: how will this subsection work and what is it meant to do? In my amendment I turn it into a conventional guidance provision:
	"Ofqual must, in performing its functions, have regard to any guidance on aspects of government policy given by the Secretary of State".
	The subsection is very wide and I am sure that under the heading of "government policy" almost anything you wanted could be included.
	I am pursuing the point because it obviously impinges on independence. As drafted, is this really a formal power to direct and therefore could produce directions with which Ofqual must comply? If it is a formal power to direct, would any direction made under it be laid before Parliament? As we have discussed before, one of the difficulties with directions is that they are not subject to parliamentary procedure. Indeed, Parliament may never learn that directions have been laid, or if it does, only many months after the event. In summary, I seek clarification of what this subsection is intended to mean and how it is to work.

Baroness Verma: My Lords, our amendment is simple and neatly complements that of Amendment 227, moved by the noble Baroness, Lady Walmsley, which inserts a "timeliness" objective into Ofqual's remit. We have already heard her clear and helpful explanation of why this objective is necessary and why Cambridge Assessment has thought to recommend it. I should like to raise two points.
	The first is that Cambridge Assessment feels that it is not accurate to dismiss this amendment as unnecessary because the Bill already includes the need for efficiency. The Government may argue that the virtues of efficiency and effectiveness presuppose timeliness, but this is not, in fact, the case. As noble Lords will be aware, this was exemplified when the failure to co-ordinate the introduction of Curriculum 2000 meant that courses started before the textbooks had even been printed. I hope that the Minister will have a different answer from that provided at the Committee stage in the Commons. I am sure that, after consideration, the Minister will be prepared to accept that it is sensible to make it explicit that Ofqual must ensure that the delivery of its functions is timely.
	I draw attention to the amendment tabled by my noble friend Lady Perry. We have consistently argued throughout the Bill for greater employer engagement in education and skills. At no period is this more important than during a time of recession, where reskilling and further education become important parts of adapting to a changing job market. In this vein, Amendment 237 also seems to have a sensible principle at its heart. We have been looking at the objectives of Ofqual in a rather arcane manner; it is important to consider that a major function of Ofqual is to ensure that standards are maintained in order to benefit the learner, whether this is in terms of broadening their mind or becoming more suited to a particular job or role.
	Finally, I add my support to the amendment tabled by my noble friend Lord Eccles. With characteristic care, he has pointed out that it is important that Ofqual should not only have regard to government policy but also to the guidance around such policy. The Government have consistently been using the protection of guidance to reassure the House that amendments will be catered for. Does the Minister agree that it should therefore follow that Ofqual should be required to have regard to it as well as government policy? I look forward to the Minister's response.

Lord Sutherland of Houndwood: My Lords, I am happy to support "must" over "may" for the eloquent reasons given. It is important that we signal clearly that we have an interest in what employers want. If there is an overall lack in the Bill, especially in relation to Ofqual, it is that insufficient overt mention is made of learners, learning and education. One way of dealing with this would be Amendment 237.
	Finally, it is immensely important that we clarify the issues raised by the noble Viscount, Lord Eccles, about how the Secretary of State would issue directions. I have long advocated the need for this to be done in the public arena so that it can be subject to the scrutiny of the community.

Baroness Morgan of Drefelin: My Lords, I start on a happy note: we will all want to congratulate the noble Baroness, Lady Perry, on her special day today and wish her many happy returns.
	Picking up on a suggestion which I may have allowed following the earlier debate—that I somehow have a grudge against PR companies—I wish to make it absolutely clear that the Government are grateful to many PR companies for the great work that they do.
	I appreciate the desire of the noble Baroness, Lady Perry, for me to say that we can accept all these amendments in a single word and make it all right, but I fear that I am not going to necessarily progress the debate a lot further than the Committee in the other place. I am advised, quite comprehensively, that the issue of timing is picked up within the Bill. I shall attempt to take your Lordships through this because I have great sympathy with the sentiments underlying the issues raised in the debate.
	The importance of Ofqual acting quickly when it needs to, the imperative of protecting the needs of the learner and of having a long-term commitment to confidence rather than a short one, and so on, are all extremely important points. The Bill already requires Ofqual to operate in these ways but I will have a go at convincing the Committee.
	Returning to the concern of the noble Baroness, Lady Walmsley, about whether the public confidence objective is linked to the assessment objective, I am advised that Ofqual has to meet all its objectives and balance these against each other. So they are all linked to each other, as we should expect.
	Amendments 227 and 243 in particular refer to timeliness or acting in a timely way. I take this to mean that if Ofqual needs to act urgently then it should do so, but equally it should not rush into things where that would be inappropriate—qualification development, for example, can take a long time to do properly—and no one should be able to pressure it do things too quickly or too slowly. As a Minister I feel slightly as if I am standing here trying to be in two places at once.
	The Bill provides for all this already. Ofqual must act efficiently and effectively under Clause 126(7) so that it cannot go too slowly, and under Clause 126(2)(b) it has to have regard to reasonable requirements of learners. Obviously that brings with it the requirement not to go too suddenly, with reference to the points made earlier about printing textbooks and signing up to courses with the expectation of being able to obtain qualifications. Provided that it met these requirements—remember that Parliament can hold it to account for this—no one would have any way of forcing Ofqual to go at a different pace. As we said earlier, it is going to be an independent body.
	It is worth saying, though, that timeliness is not an end in itself; it is certainly not an objective. Timeliness is important for efficiency, effectiveness and for meeting the interests of learners, but the amendments suggest that timeliness is important for its own sake. Maybe I am being otiose, I do not know, but I do not believe that Ofqual can achieve its objectives if it behaves in a way that is not timely. This could risk confusion in the way that we interpret the Bill.
	Time appears again in Amendment 232A. Ofqual would not meet its confidence objective if it were not meeting it at all times. If it were to plan only for the short term, it would risk not meeting its confidence objective in the long term. With the Bill as drafted, Ofqual is required to think long-term about building confidence, with confidence being nurtured and allowed to develop over time.
	On Amendments 229 and 237, learners need high quality qualifications, as we all agree, to reflect their achievements. I agree that employers are key customers of regulated qualifications, and Ofqual will have to ensure that those qualifications are relevant to the needs of employers. Both these requirements are adequately covered in the Bill already; Clauses 126(2)(b), (c) and (d) give Ofqual general duties to have regard to the reasonable requirements of employers and learners. Additionally, subsection (4)(c) will be used to require Ofqual to have regard to information provided by sector skills councils. None of these interests has absolute priority. Were they ever to conflict, Ofqual would have to make judgments. We are looking for an independent body that will make judgments about how to prioritise them and, as the Committee will be well aware, will be accountable for the judgment that it makes and how that judgment has been reached.
	The noble Viscount, Lord Eccles, may have flagged this issue at Second Reading. I hope that I can help him. The purpose of a direction here is to identify the particular areas of government policy that Ofqual should take into account, but that does not mean that Ofqual, having considered that aspect of policy, is obliged to take any specific action relating to it. If Ofqual decided that implementing the policy in a particular way was inappropriate—for example, because it conflicted with its objectives—it could decide not to do so.
	Amendment 254 relates to what Ofqual should do if it revised existing accreditation criteria—in other words, if it changed the requirements of a particular qualification. The existing provision in Clause 137(10) gives Ofqual the power to make a "saving or transitional provision" in such circumstances. If Ofqual decided to change the accreditation criteria for a qualification for which people were already studying, the awarding body could not then offer the old version of that qualification from a given date. However, importantly, Ofqual can insist that the awarding body allow existing learners to take the old qualification—noble Lords were concerned about resits and other scenarios. Ofqual would have to make such a provision if failure to do so conflicted with its general duty to have regard to the reasonable requirements of learners. Amendment 254 stipulates that making such provisions should be not an option but compulsory for Ofqual, even if there were no students studying for a qualification, which could put it into a perverse position.
	In the light of my comments, I hope that noble Lords will feel reassured that timeliness and the other concerns raised in this group of amendments have been addressed. However, if there is anything further that I can do or any reassurance that I can give, I shall be very happy to do so before Report.

Lord Lucas: My Lords, it was very pleasant indeed to hear from the noble Baroness's lips the echo of what I had been saying on new Section 56G. She gave a very clear exposition of the limits of "have regard to", which is exactly what I had been trying to take her up on. I am therefore confident that she understands exactly what I was on about then and look forward to a very positive reply.
	However, I think that the noble Baroness took the amendment of my noble friend Lord Eccles too lightly. The key thing is transparency. There is nothing in the Bill that says that the direction must be given in public. Let us suppose that it is government policy—it could be said to be so at the moment—to raise educational attainments. If Ofqual is told to "have regard to" that, that is pushing Ofqual off course; it is giving Ofqual an incentive to come up with the answer that standards are rising. Ofqual must be insulated from that. Therefore, the very least that we should look for here, which I hope my Front Bench will take seriously on Report if we do not make progress on it, is that any use of this provision be made public. There should be no question of any such direction being given without it being made public.

Baroness Morgan of Drefelin: I can give a commitment from the Dispatch Box that such directions will always be made public.

Viscount Eccles: I am grateful to the Minister for her explanation, as well as to my noble friend and the noble Lord, Lord Sutherland. I am only partly comforted, though, by the Minister's reply, because I think that if the matter were ever to get to court, the court would be absolutely clear about the meaning of "direct" and "direction" as used in Acts of Parliament. The fact that we have put in "must have regard" and have done away with "must comply" would not stand; the court would find otherwise. Could that matter be checked? It is not a sufficient assurance that the way in which the subsection is written is okay. Is there a precedent for writing a subsection in this way? If there is, has it been tested in any way? I am not familiar with the language of the subsection; I am not 100 per cent certain that it has never been used before, but no doubt the Bill team will be able to discover that.

Baroness Morgan of Drefelin: I am happy to do as the noble Viscount suggests.

Baroness Perry of Southwark: I thank the Minister for her kind remarks and her reassurance on the interests of employers. I am totally reassured that the subject is covered adequately in the Bill, although I would have liked it to be so where the objective is first stated. However, I accept that it is there.

Baroness Walmsley: My Lords, I am most grateful to the Minister for her reply and for the comments of all other noble Lords.
	I first address Amendment 227, which would insert "the timeliness objective". I thank the noble Baronesses, Lady Perry and Lady O'Neill, for their support on this point. In her reply, the Minister appeared to be concerned that, if we were to put this into the Bill, Ofqual would be forced to do something either at a particular time or at a particular speed—faster or slower. I do not agree with her interpretation of the meaning of timeliness; to me, it predicates not a particular time but an appropriate time. That is, we are not saying "in time" or at any particular time. When something is timely, the timing is appropriate. It may be done quickly or it may be done slowly—but if it is timely, it is right and appropriate. I see that the Minister has a thoughtful expression on her face. Perhaps we can discuss this interpretation of "timeliness" between now and Report, because I would have to dispute her interpretation of its meaning. To me, there is no confusion about it, as it is absolutely clear. That is the meaning of timeliness and her argument falls if she accepts that definition.
	On Amendment 232A, perhaps I did not explain what I meant by inserting what I aim to insert into the public confidence objective. I did not mean that Ofqual should carry out that objective at all times; I meant that the objective should be carried out so that the public would have confidence in standards being consistent over time. Perhaps the Minister misunderstood what I am looking for under that amendment and perhaps we should discuss it outside the Chamber and come back to it, if I am not satisfied with her explanation.
	I think that I have to accept that learners are in the Bill. The reassurances from the Minister at the Dispatch Box carry weight in that respect.
	I thank the noble Lord, Lord Sutherland, for his support for Amendment 254 and the power to make transitional arrangements. However, I take the Minister's point about Ofqual's power to make those arrangements, when she said that it could not fail to make such arrangements if it were to the disadvantage of learners not to do so. On that basis, I am encouraged that we can leave it to the good sense of Ofqual to make transitional arrangements in situations where learners need that to be done. Therefore, I beg leave to withdraw the amendment.
	Amendment 227 withdrawn.
	Amendment 228
	 Moved by Baroness Sharp of Guildford
	228: Clause 125, page 76, line 9, at end insert—
	"( ) the equality objective"

Baroness Sharp of Guildford: My Lords, in moving the amendment I also speak to Amendments 235 and 270. I am speaking on behalf of the noble Lord, Lord Low of Dalston, who very much regrets that he cannot attend the Committee today.
	These amendments would introduce a sixth objective into Clause 125(1), that of promoting equality standards. Clause 125(1) currently contains five different objectives: qualification standards, assessment standards, public confidence, awareness and efficiency. However, the principle of equality is not there. Examinations and qualifications are often designed with little thought given to accessibility and inclusivity for disabled students. This results in three main outcomes.
	First, there is the use of retrofitted "reasonable adjustments", as they are called, which result in some form of compromise or, often, disadvantage for the candidate. Secondly, there is the creation of a list of disallowed reasonable adjustments. For example, if a blind student sits an English exam, they are required to be physically able to read the text. A reader or voice software is not acceptable. If the text is in Braille, it is obviously acceptable. Alternatively, a disabled candidate would be exempted from a section of the exam if they could not complete it due to the rigidity of the reasonable adjustments lists. Where exemptions are given, this is indicated on an examination certificate, which is called "certificate indication" and implies that, for example, a blind person cannot read despite having adaptive technology that allows them to do so in real life. This would clearly put a disabled person at a disadvantage with employers.
	The Government's central argument is that Ofqual will be covered by the equality duty and will have to produce an equality scheme in accordance with work going on in the Equality Bill. They also argue that adding this objective will not substantially add to the Bill or give any extra meaning to the regulator. The objectives of Ofqual include a public confidence objective, which we have been talking about at length during the latest batch of amendments. Maintaining public confidence has been the root cause of, and main justification for, discriminatory approaches to examination and assessment. We are concerned that Ofqual will have to give primary consideration to this objective, as outlined in the primary legislation that creates the organisation, and then give secondary consideration to its duties under the Equality Bill.
	The Government's argument that an equality objective is unnecessary is based on the fact that the Equality Bill would require exam boards to make reasonable adjustments. The RNIB believes that this argument lacks strength, especially given that the Special Educational Needs and Disability Act 2001 has been in place for some time now and examination boards still fail to adjust. It could be easily argued that the regulator has as much responsibility to ensure that qualifications and assessments are of a decent standard and that the public are aware of, and have confidence in, exams, and delivers all of this while providing good value for money without having specific objectives. Otherwise, why have a regulator?
	The Government's insistence at not having an equality objective while maintaining a specific "public confidence objective" is worrying, especially in light of the way in which public confidence—in the form of maintaining standards and not dumbing down—has been used to justify not reasonably adjusting exams and assessments for disabled learners. I beg to move.

Lord Elton: My Lords, I would just like to interpose two points. First, I want it to be quite clear that the equality that is sought is equality of opportunity and not equality of outcome. That must be obvious. Secondly, I would not subscribe to anything remotely like this until I knew what was finally going to be in the Equality Bill, which is importing entirely new implications, many of which are quite hostile to the way of life that I think we need.

Lord Addington: My Lords, I am afraid that this is an amendment where I am inspired to become involved by my noble colleague's speech. Once again, most of the objectives would seem traditionally to have been covered by best practice. Could the Minister give us an assurance that the reasonable adjustments of the DDA would be possible without this insertion into the Bill? The idea of saying "You cannot read", and interpreting reading as looking at a piece of paper, to somebody who is blind and takes communication from a series of symbols—ie bumps—is absolutely absurd, to be perfectly honest. They are reading another way of expressing English—not from a visual impression, but from a three-dimensional one. I suggest that looking at the concerns here would be very interesting. I hope that we get a good answer to this because it suggests that the Bill is missing the best practice of years of previous legislation.

Baroness Garden of Frognal: I put my name to the amendment, but my noble friend Lady Sharp regularly supports the amendments on disability that the noble Lord, Lord Low, puts forward. I fully support her words. I add one thing: having worked for an awarding body—City and Guilds—for 20 years, I know that the awarding bodies always made efforts to take advice from disability groups, whether they were people who had expertise in deafness, blindness or whatever the other disability was. Of course, the overriding principle of the qualification was to maintain a standard that was set primarily for able-bodied people, so the addition of equality to these criteria for Ofqual would be welcome.

Baroness Howe of Idlicote: My Lords, I would certainly like to support the amendment. Whether you object to the Equality Bill or not, there will be plenty of time to look at it and change it in this House. If it becomes law, in whatever form, it is clearly sensible that it is observed, regardless. As the noble Baroness said in her introduction, there are all these other objectives. Public confidence is, above all, the right one to pick, but they are all relevant here. There is absolutely no reason, if all the other objectives are in the Bill, for equality not to be. I strongly support the amendment.

Baroness Verma: My Lords, we recognise the need to make sure that regulated qualifications are accessible to people with very different needs and requirements. However, we acknowledge that there are difficulties with extending the scope and remit of qualifications to ensure that all are included despite their varied needs, capabilities and desires. The potential problems surrounding this serve further to underline the importance of this amendment.

Baroness Morgan of Drefelin: My Lords, this has been a very helpful debate. It may have been short, but in no way does that indicate the level of importance that the Committee attaches to these issues. I cannot stress enough how sympathetic I am to the thinking behind these provisions. Equality and inclusiveness will be important to the work of the QCDA and Ofqual, as for all other public bodies.
	On Amendments 249, 250 and 254—I hope I have mentioned the correct amendments as my list is slightly muddled—as your Lordships well know, the Equality Bill is now being considered in another place. As the noble Baroness, Lady Sharp, who spoke very eloquently on behalf of the noble Lord, Lord Low, will be aware, we will consider that Bill in the next Session, as I believe that it is a carry-over Bill. That Bill updates the legal framework for equality which has developed piecemeal over the past 40 years. I strongly welcome that Bill, which I think this House will enjoy looking at forensically.
	This amendment gives me the opportunity to say that one of the major new aspects of the Equality Bill—I do not wish to pre-empt its arrival—is the introduction of a single public sector equality duty, as we have heard. This will build on the current race, disability and gender equality duties. These general duties will require all public authorities, including the QCDA and Ofqual—once they are established—to have regard to eliminating discrimination, harassment and victimisation, advancing equality of opportunity—the noble Lord, Lord Elton, pointed to that—and fostering good relations between people in disadvantaged groups. We are consulting on the exact nature of the specific public duties. I believe that these amendments are unnecessary, as both bodies will have specific duties under the Equality Bill. Moreover, the amendments, if accepted, could be potentially damaging. If Parliament considered it necessary to make explicit the equality objectives of these two bodies, it could be taken to imply that the proposed Equality Bill provisions were somehow inadequate for those bodies which did not have such specific objectives. That is a rather dry explanation but it is important to make that point. However, that is not the case, and I do not believe that noble Lords would want to imply that.
	I believe that the noble Baroness, Lady Sharp, questioned the appropriateness of the public confidence objective when there is no equality objective. Public confidence is central to an effective qualifications system. If people doubt the value of qualifications, they will have limited value and students with disabilities, as much as other students, will suffer as a result. Of course, public confidence must be well founded. Two things are important here and Ofqual must do both of them. It must ensure that standards are maintained, including, where appropriate, ensuring that adjustments are made for people with disabilities, and it must demonstrate to people that standards have been maintained. One without the other would be inadequate.
	The noble Baroness, Lady Sharp, asked if there was a conflict between the public confidence objective and a duty in the Equality Bill. I am advised—I thought that this was the case—that, to put it in colloquial terms, a duty will trump an objective. That is a strong line. The noble Lord, Lord Addington, asked whether the objectives of the DDA could be met without this amendment. The DDA already applies to qualifications, as the noble Lord would expect. I would be happy to discuss this matter further with noble Lords before Report. I or a ministerial colleague would welcome the opportunity to discuss with the noble Lord, Lord Low, the issues that the noble Baroness has raised. I know that the QCA and the interim Ofqual have worked closely on these issues with disability groups, including the RNIB. I am sure that we can offer more reassurance. I value the opportunity to discuss these important issues in Committee.

Baroness Sharp of Guildford: I am extremely grateful to the Minister for her reply and to all other noble Lords who participated in this short debate. To answer the noble Lord, Lord Elton, it is equality of opportunity, not equality of outcome, that one sees as sensible.
	On the Equality Bill, there are already two statutes, in the Special Educational Needs and Disability Act and in the Disability Discrimination Act, which invoke the organisation setting examinations to be disability friendly and to take account of equality of opportunity. As my noble friend Lady Garden indicated, best practice does exactly that. The problem is that what is best practice for some organisations is not adhered to by others, and it is very important that all organisations adhere to those standards.
	As the Minister recognised, there is some worry on the part of disability organisations that by making public confidence an objective in the Bill, the objective of equality will be seen to fade beside it. The Minister's offer of carrying forward discussions is a very good one, and, if I may, I will accept it on behalf of the organisation and on behalf of the noble Lord, Lord Low. I beg leave to withdraw the amendment.
	Amendment 228 withdrawn.
	Amendments 229 to 231 not moved.
	Amendment 232 had been withdrawn from the Marshalled List.
	Amendment 232A not moved.
	Amendment 233
	 Moved by Baroness Walmsley
	233: Clause 125, page 76, line 28, leave out subsection (6) and insert—
	"(6) The efficiency objective is to secure that the regulated qualifications system operates efficiently and, in particular, that any sums payable to a body awarding or authenticating a regulated qualification in respect of the award or authentication represent value for money."

Baroness Walmsley: In moving Amendment 233, I shall speak also to Amendments 234, 251 and 251A, which are grouped.
	Amendment 233 ensures that the work of Ofqual in regulating our qualifications system represents value for money. Ofqual will not be able to deliver its aim unless it is given the remit of regulating the qualification system as a whole, rather than just the narrow remit of regulating individual providers or individual qualifications. The amendment will mean that it must look at the way in which qualifications are procured by schools and colleges and that it oversees the whole market. That must be in the best interests of learners, because schools and colleges must provide exams that are in their interests.
	Amendment 234 adds words at the end of the same subsection to require that Ofqual ensures that payments to awarding bodies are kept within inflation. Certain sectors often claim that their costs are such that above-inflation price increases are sometimes necessary, but I do not think that that will apply here. Schools and colleges should be protected from vast price rises by such an amendment. The AoC has told us that colleges, which currently pay £170 million a year in exam fees, would appreciate clarification on the criteria that will be used to make these judgments. Keeping fees within inflation would follow the approach taken, for example, in the water industry and other privatised utilities. Ofwat sets a limit on price rises for the forthcoming five years. Over what period will Ofqual be expected to do the same, if at all?
	Amendment 251 relates to Clause 133, which is about the power of Ofqual to cap fees payable to providers without any limit in the Bill. The amendment requires that Ofqual conducts a proper review of the market before capping fees, to the point where it is satisfied that doing so will remedy or prevent any adverse effects on competition. If Ofqual were to act too often as an economic regulator by the use of this capping power, it might serve to stifle innovation and might drive smaller, specialist providers out of the market. Fee capping should be used as a penalty only where there is proven evidence of market failure.
	Amendment 251 inserts an appeal process into the situation whereby Ofqual caps fees. We on these Benches want Ofqual to have real powers, but by not providing the appropriate review and appeal structure for the implementation of those powers capping fees would seem at odds with the desire to establish a regulator with proper accountability. Reference to the Competition Commission, provided for in our Amendment 251A, would provide such a fair and independent appeals process. I beg to move.

Baroness Perry of Southwark: My Lords, I shall speak to Amendments 248, 259 and 250, which deal with fee capping. I am extremely grateful to the Minister for the time that she and her officials spent talking through this issue with me during the Recess. At the end of our discussions, we pretty well agreed to disagree on the issue. If, as I expect, my amendments are firmly turned down, as a fallback I would be very supportive of the Liberal Democrat amendments, because they at least provide some protection over the powers of fee capping.
	Throwing myself against the prison wires, perhaps I could just say why I believe that there is not only no need for Ofqual to have powers of fee capping but that it would be wrong for it to have such powers. It is unnecessary because examination bodies are highly competitive commercial organisations; they watch each other like hawks and are very careful to price their qualifications in relation to cost and what they know the market can bear. It is unnecessary also because it would not represent a protection of public money—which I would defend to the death—because the examination bodies are being paid from a capped pool. The money which the schools and colleges have to pay the examination bodies to provide examinations already comes from their capped allocation of income year on year.
	The examination experts within each school—the officers have various titles—are extremely knowledgeable. They, too, watch the market very carefully. They are very good at fighting for their students to have the best and most prestigious examinations at the most reasonable prices that the school can afford. In other words, we are describing an absolutely perfect market: the buyers and the sellers are extremely expert and price conscious. Much as I join the Committee in my wholehearted support for the setting up of Ofqual, there is more expertise between the buyers and sellers of examinations than there is in the regulators. It is slightly offensive to suppose that 30-odd semi-civil servants in Coventry would know better than the 2,000 or so examination officers in schools and the several thousand expert employees in the various examination boards and their academic advisers.
	I feel strongly about this, but I suspect that I shall be disappointed.

Baroness Verma: My Lords, I take great pleasure in rising to support the amendments of my noble friend Lady Perry and the noble Baroness, Lady Walmsley. Groups such as Edexcel have expressed concerns that while Ofqual's duties should relate to the regulation of the standard of examinations, it should not be Ofqual's role to regulate the market of qualifications. This could have a detrimental impact on the sector. Can the Minister account for why it was decided that Ofqual should also take charge of the pricing of qualifications? Does he not feel that this task would be better dealt with by the market?
	The worry is that Ofqual's powers to cap fees have the potential to distort the market by artificially restricting the breadth of qualifications available. Edexcel has expressed concern that by using this economic power, Ofqual has the potential to stifle innovation and to drive smaller and specialist providers out of the market. This would give more control to larger providers and encourage them to concentrate on more popular subjects. Does the Minister agree that if the market is allowed to operate freely, it will create a level playing field for all qualification providers? What is the logic behind allowing Ofqual to place a cap on some providers? It would appear natural that if qualification providers price themselves out of the market, their qualifications will not be taken up by schools and learners.
	It is important for learners to have a free choice of qualifications. We acknowledge the difficulties that could arise from qualification bodies that charge too much. Will the Minister inform us of the scale of the problem? Is it sufficient to be a catalyst for a fee-capping power that could alter the state of the market in a way that would damage qualification provision and providers?

Lord Young of Norwood Green: My Lords, we need qualifications that are delivered efficiently, so the fees relating to those qualifications should represent value for money. That is particularly the case because many fees are paid from the public purse. At a time when all public sector organisations face the challenge of using their resources more efficiently, qualifications and the awarding bodies that offer them cannot be immune from those pressures.
	The qualifications system that we have in this country, with independent awarding bodies, promotes choice, innovation and responsiveness. Ideally, it also promotes efficiency and value for money, but we cannot be certain that it will do so in all cases. There may be market failures—for example, with small, specialised qualifications. The market may not be large enough to support competition. The Bill gives Ofqual an explicit efficiency objective and, to give teeth to that objective, it gives Ofqual the power to cap fees. This is a power that many other economic regulators have in markets where there is a potential for a significant market failure.
	A fee-capping power is not the only way to deliver efficiency or tackle market failures. Ofqual will need to use other levers to ensure that the market operates as efficiently as possible. However, a capping power is a critical signal of the seriousness of the efficiency objective.
	Under the Education Act 1997, the Qualifications and Curriculum Authority has the power to cap fees. However, it is only in the past two to three years that interim Ofqual has started to build up evidence about the efficiency of the system. To enable it to come to a view on whether fees provide value for money, work was started to build evidence to address increasing concern among schools, colleges and employers about fee levels. Ofqual must build on this work as it considers how to achieve its efficiency objective. Before taking a decision to cap fees—if that is what it decides to do—it would need to develop the intelligence to make fine judgments about how to balance the need for market stability and investment with keeping costs reasonable.
	The amendment puts a maximum increase in fees into the Bill and would prevent Ofqual from coming to evidence-based judgments of that kind. It could place at risk the delivery of good-quality qualifications by making it hard for awarding bodies to fund the necessary investment. That is why we cannot accept it. It might be said that an increase simply linked to inflation would be acceptable, but it might not be if we felt that reducing costs in an acceptable way was part of increasing efficiency.
	The Bill puts in place new safeguards around the use of the fee-capping power. If the regulator now were to impose a cap, the sole avenue of appeal to the awarding body would be to seek a judicial review. In future, there will be three extra hoops for Ofqual to leap through before it can cap fees. First, it will be required under Clause 147 to consult on and publish its fee-capping policy as part of its qualifications regulatory framework. Therefore, it is not a question of Ofqual trying to guess the market in a random way.
	Secondly, if on a particular occasion Ofqual does decide to impose a cap, it has to tell the awarding body of its plans. It also has to allow a period for any representations, so we are not talking about Ofqual, after having looked at evidence, saying to a body in a random or arbitrary manner, "Okay, we've decided you're going to reduce your fees". There will be a process of dialogue; Ofqual will want to hear that body's side of the story. It must also have regard to any such representations.
	Thirdly, if Ofqual decides that a fee cap is still appropriate, the awarding body may demand a review of that decision by a suitable independent person and Ofqual cannot do anything until that review has finished.
	Therefore, we argue that there are more than sufficient safeguards to ensure that this is a reasonable way to proceed. Of course, as now, an awarding body could always apply for a judicial review of a decision made by Ofqual. If it considered that the regulator had acted unlawfully in exercising this or any other of its powers, substantial protections would strike a fair balance between the rights of the awarding bodies and those of the customer and taxpayer.
	However, Amendments 251 and 251A assume that even those safeguards are not sufficient. They would require a market investigation by Ofqual before a fee cap was imposed and would then allow awarding bodies to appeal to the Competition Commission if they were still unsatisfied with Ofqual's decision. That really is taking a couple of sledgehammers to crack a nut. We have gone through the process of ensuring that Ofqual's approach is not arbitrary. If you wanted to introduce a delay in the procedure, that would be the way to go—to require a full market investigation and then an appeal to the Competition Commission. Of course, Ofqual may choose to conduct an analysis similar to a market investigation. It has the power to do so, but requiring such an investigation and requiring that investigation to come to specific conclusions would make for an unduly protracted process. If done properly, a full market investigation could take more than the six months specified in the amendment, and we do not think that that is reasonable in assessing whether the fees charged by an awarding body are reasonable in the circumstances. In practice, these amendments might make it very difficult to use the fee-capping power and therefore much harder for Ofqual to achieve its efficiency objective. The taxpayer would not thank us.
	Finally, Amendment 233 would change Ofqual's efficiency objective so that it related not just to the activities of recognised awarding bodies but to the regulated qualifications system more generally. Ofqual has the power to deliver its efficiency objective as currently drafted because it relates to regulated qualifications, but it has no powers over any parts of the wider qualifications system which do not relate to regulated qualifications. Therefore, the amendment would give Ofqual responsibility without power, which is not a prerogative that we would wish to award. It would not be able to do anything to secure the efficiency of the wider system.
	I want to respond to some of the comments and questions that have been put. The noble Baroness, Lady Walmsley, talked about qualifications procured and the whole market. My information on the whole market is that something like four main awarding bodies account for approximately 90 per cent of the market. We will come back to the noble Baroness on the criteria for fee increases, but we have gone through the process of how Ofqual would go about imposing such increases.
	Reluctantly, much as I would love to give the noble Baroness, Lady Perry, the birthday present of accepting her amendment, I cannot do so. She coined the phrase a "perfect market", which I thought was a new example of an oxymoron. In today's circumstances, I think that there is just a tad of cynicism about whether free and unfettered markets are always perfect or whether they need just a little regulation. Getting regulation right is absolutely necessary but I must admit that I was surprised at such strong advocacy for free and unfettered markets in today's circumstances. I thought that we had learnt one or two lessons about the dangers of going too far down that road.
	There is a suggestion that I am being unduly cynical, but I do not mean to be. I am being serious. The qualifications market is worth hundreds of millions of pounds a year, much of which comes from the taxpayer. We do not know whether the taxpayer gets value for money for that, but we are entitled to know. Many awarding bodies have argued against these provisions and indeed are the instigators of some of the amendments. Of course, they would say that, wouldn't they? I would do the same in their position. But that is not what the Committee should be looking at. We should be considering whether we have a perfect market—if such a thing exists, and I venture to suggest that it does not—and is it right that we should regulate accordingly and fairly? It has been adjudged that on occasion the market has acted against the interests of customers and consumers.
	There are absolute grounds for this, considering the sums of money involved, and for doing it in such a way that encourages efficiency. We are looking not to penalise awarding bodies but for Ofqual to work with them to ensure that they can raise their game. I see nothing wrong with that. We do not need a weaker regulator but one with the necessary powers, and the ability to work with the awarding bodies and to act when necessary on behalf of customers, consumers and taxpayers to ensure value for money. That should make us all the more determined to give the regulator the power it needs. Just in case we reach the situation where some awarding bodies might seek to take advantage of the taxpayer, the regulator should be in a position to expose and tackle that.
	I do not want to end on a negative note; I want to end on a positive note. For Ofqual to operate in the way that we want, it has to be a constructive body and one that works with awarding bodies to raise their standards and efficiency, to ensure that everyone benefits. I have endeavoured to answer all the questions that have been put to me, except on the criteria referred to by the noble Baroness, Lady Walmsley. In the light of the comments, I invite noble Lords not to press the amendments.

Lord Elton: The noble Lord and my noble friend have almost equal, and certainly opposite, passion about this. I wonder whether there may be some compromise and whether it would be possible for the provisions to which the noble Lord objects to be implemented by an affirmative order when it is decided that the market failure that he predicts has taken place. An affirmative order would give both Houses a chance to consider whether the market had failed, and for those affected by the decision to make their views known to Parliament.

Lord Lucas: That is an immensely sensible suggestion. I very much hope that our Front Bench will take this group of amendments seriously in going forward to Report. There are some deep-seated problems. First, it is clear from what the Minister said that small, specialised qualifications will be squeezed out by this process. They are necessarily more expensive, particularly if a young body is trying to develop a qualification in competition with one of the big established bodies. It has to provide something that is notably better but it will inevitably be more expensive, at least to begin with. If a fee cap is in place, that body will be unable to develop it. I suspect that fee capping will also suppress innovation in existing awarding bodies, which will find that their profitability is limited not in relation to the whole expenditure of their enterprise but merely to the costs of providing that particular examination.
	That is not the way in which the public sector deals with, say, the cost of medicines, where it is recognised that companies require substantial funds to innovate and advance their business. We have not applied that sort of mechanistic cap in that case, although it is similar to the public sector buying substantial amounts of privately produced commodities. I do not think that it is any more workable here than it would be with medicines.
	The Minister said that there could be a review to a third party. I see nothing in the Bill about what the basis of that review would be. If he has information on that, I should be interested to hear it, because it seems crucial. He objected to one of the Liberal Democrat amendments on the basis that conducting a full investigation would take too long and be too expensive. He is saying that Ofqual will reach its judgments on the basis of an inadequate investigation, a short and improperly researched investigation. In other words, it will be an arbitrary decision and it will just impose the caps and see what happens to the examination system.
	Most of all, I object because of the inherent conflict that Ofqual would face if it had those powers. Ofqual is setting the rules. Ofqual is essentially saying what an examination has to be like to maintain sufficient quality, so it is involved in influencing the whole system of examinations—how they are carried out how they are marked—all of which will have immense cost implications for the awarding bodies. Then, on the other hand, it is supposed to apply a cap to the costs. How on earth is it to resolve the conflict? Should it reduce its requirements on the examination bodies to reduce the costs, even if that would conflict with its other objectives? Or is it to pursue the route that John Prescott took when he was the Minister in charge of British Rail, putting so many obligations on it that the poor thing went bankrupt?
	It is ridiculous to make Ofqual face conflicts to which there is no sensible resolution. Ofqual needs to be clean. It needs a clean set of objectives. It needs absolute clarity and purity in what it is setting out to do. Giving it the capping powers is a pollution.

Lord Young of Norwood Green: I feel that must respond to what I have come to recognise sometimes—only sometimes—as what I would describe as Lucasian hyperbole. We have no desire—I am sure that the noble Lord recognises this—in any way to undermine or penalise small, specialist bodies. They have a vital and essential part to play in awards. Nothing that I have said and nothing in the provisions can in any way lead you to deduce that conclusion.
	The idea was posed that we are giving Ofqual, as a regulator, powers that other regulators do not have. That is absolutely untrue. We are not polluting anything; we are doing what we should be doing as a Committee, as a House—ensuring that customers and consumers of the product get a fair deal. They are not necessarily always able to judge whether the market is absolutely perfect, or whether there is some kind of cartel operating. There may or may not be. We do not presume to judge the situation. I find it surprising that, given that many of the amendments come from or are, shall we say, supported by the awarding bodies, there is not just a touch of concern about what I could describe as a vested interest.
	We have a duty to look at both sides of the equation. As I said, we want to encourage the development of high-quality awards, but we also want them to be provided at a reasonable cost. I should have thought that my noble friends on all the opposition Benches would have supported that premise. Although I am an admirer of his imaginative responses, it is unnecessary to say, as the noble Lord, Lord Elton, suggested, that somehow for this regulator to operate at all, we need an affirmative resolution. We do not say that of Ofgem or other regulators. It is not a viable, necessary or practical way forward. If we are serious about ensuring that we give value for money for schools, colleges and learners, and I believe this Committee is, we have an obligation to ensure that they get a fair deal, that we drive up the quality of the awards and that they are delivered in an efficient manner.
	Given my previous comments and the assurances about the role of Ofqual and the safeguards, I hope the noble Baroness will withdraw the amendment.

Baroness Perry of Southwark: There is no parallel with Ofwat or Ofgem because they deal with individual households, which do not have the expertise or knowledge to do any bargaining themselves. The position of Ofqual is different. It deals with powerful institutions. Secondary schools have budgets of several million pounds and are very high powered. Their examinations officers are expert and know exactly what they are doing. I agree there are lots of imperfect markets, and we have seen a lot of them in the past few years, but this is a perfect market in the sense that there are very sophisticated consumers and highly competitive providers. The OFT would prevent any cartel developing among the examination bodies. However, I recognise that the argument is falling on very deaf ears, so I am happy to leave it at that.

Lord Lucas: The Minister said that this will not affect small, innovative producers. If someone were to start, say, an English GCSE from scratch as their first qualification, would that have to be priced at the same price as the main awarding bodies, or would the Minister expect Ofqual to allow that GCSE to have a higher price? In other words, are these caps to be individual to each awarding body and qualification or general for a qualification? Which regulator is the Minister drawing on in his comparisons? What set of powers and rules is he comparing Ofqual with? He mentioned Ofwat. That relates to a commodity where there is no competition. You have to get your water from the tap you have, and of course that requires careful price regulation, but where there is serious competition as, say, with buying broadband or something like that, I am not aware that the price is capped in any useful way. Which regulator forms the pattern that we are supposed to be following here?

Lord Young of Norwood Green: For the record, I mentioned Ofgem, not Ofwat. I merely gave an example. We are talking about the principle of regulation in this market. There is no way that noble Lords can deduce that there is any attempt to stifle innovation. If somebody comes along with a new and innovative product, Ofqual will of course want to take that into account. I do not know why we are making such a negative presumption about the role of Ofqual. We believe it will have a constructive and positive approach when working with awarding bodies and will encourage innovation and efficiency. I shall leave it at that.

Baroness Walmsley: This has been a fascinating debate. The Minister asked a few minutes ago, in a somewhat pained voice, whether we really want examinations to be offered at a reasonable price. Yes, we do. In Amendment 233, we ask for value for money and in Amendment 234, we ask for rises within inflation, yet the Minister will not accept them. He suggests that both opposition parties have perhaps been listening a little too closely to the awarding bodies. The Minister is aware that both opposition parties have been lobbied by all the awarding bodies, and of course we have listened to them; that is our job. When a piece of legislation comes before us, we have a duty to listen to the people who are affected by it, but the Minister underestimates the brains and independence of mind of both opposition parties if he suggests that we are just the mouthpieces of such organisations. If he wants to dispute that, he only has to look at the amendments in this group that have been tabled by both opposition parties on fee-capping and he will find that those amendments lie perfectly within the political philosophies of those parties. He will find that the Conservative Party wants to get rid of fee-capping altogether, but we on these Benches do not agree with that. We on these Benches have agreed that it may be necessary to use fee-capping very selectively; however, we ask not for a sledgehammer, as the Minister has suggested, but a very reasonable review of the marketplace and of the need for such fee-capping before it is put into place. There should also be a proper appeals process to an appropriate person.
	The Minister has not yet replied to my question about the criteria that Ofqual will use to decide whether fee-capping is required, but I accept that he will write to me. I very much echo the words of the noble Lord, Lord Lucas. He took the words right out of my mouth when he said that it is inconceivable that Ofqual would have to start from scratch when reviewing the marketplace in order to decide whether fee-capping was necessary. Ofqual should have this information at its fingertips all the time, and it should not take it very long to review the marketplace and decide whether fee-capping is genuinely necessary without stifling innovation.
	Of the three stages—the three hoops, as the Minister put it—that Ofqual would have to jump through before fee-capping, the third is a review by a suitable independent person. I can think of no one more appropriate to be that independent person than the competition commissioner—the person to whom the awarding bodies should have recourse in our Amendment 251A.
	Clearly, our appeals on both sides of the fence on fee-capping are falling on the Minister's deaf ears this evening, so we will have to think carefully about what to do with these amendments before Report. I beg leave to withdraw the amendment.
	Amendment 233 withdrawn.
	Amendments 234 to 236 not moved.
	Clause 125 agreed.
	Clause 126 : General duties
	Amendment 237 not moved.
	Amendment 238
	 Moved by Lord Lucas
	238: Clause 126, page 76, line 41, leave out paragraph (a)

Lord Lucas: My Lords, in moving Amendment 238 I shall also speak to Amendment 241.
	I had some very helpful correspondence from the Minister over the holidays on this. My concern is to find out the objective of these subsections. My understanding of the Government's objective is to reduce confusion in the marketplace, so that, where there are a number of very similar qualifications bearing different names, they should be jammed together and the awarding bodies made to be called simply "Edexcel's English" or "AQA's English", rather than having different names that create confusion in the marketplace. That is something which Ofqual should be able to do something about. I do not have much difficulty with that.
	Creating clarity is a reasonable objective for Ofqual, but I do not see how this does not apply to A-levels and Pre-U examinations. They are similar in outline and the transition between them so far as schools are concerned is not difficult. However, the Pre-U evolved because A-levels could not contain what the Pre-U wanted to do, and because of the restrictions implied by calling something an A-level, it was necessary to differentiate in order to innovate. It seems that we are giving Ofqual a power that again will tend to reduce innovation and competition in an area where those qualities should be sought out. A little extra comfort from the Minister would be much appreciated. I beg to move.

Lord De Mauley: My Lords, while we agree that the number of regulated qualifications available is important, as is required in Clause 126(2)(a), we would argue that the reason it is important is that it should offer sufficient choice for the learner rather than that it should be limited in any way, which the Government's qualifying use of the word "appropriate" at the end of the subsection appears to contemplate. Our concerns are heightened by the wording of subsection (3)(b), highlighted by my noble friend Lady Perry in her Amendment 242, but unfortunately she is not in her place to speak to it. We need to probe what the Government mean by the use of the words "appropriate" and "excessive" in these respective subsections.
	I thank my noble friend Lord Lucas for his careful and probing questions on the issue, and I hope the Minister will be able to give us some answers. Can he tell us, for example, how many qualifications he thinks would be considered appropriate or indeed excessive? Can he also explain what this will mean in terms of Ofqual's functions? Does it mean that at a certain point Ofqual will be able to stop recognising and accrediting qualifications because it feels that there are too many? Surely, as in a market situation, if there is no demand for a qualification, it will simply fall away.
	City and Guilds has pointed out that it would be,
	"inappropriate for Ofqual to be distorting the marketplace through regulating the number of qualifications available",
	because, and again I quote,
	"it is of the utmost importance that each learner has the correct learning option available to them".
	We have spent a great deal of time in our debates on this Bill ensuring that the needs of all learners are met, that suitability of qualification is taken into account and that personal need is catered for. Can the Minister account for a clause that could potentially allow Ofqual to reduce the options available?
	Ofqual is supposed to be a regulator of qualifications. Employers, learners and universities are the consumers of these qualifications. Surely, therefore, it would make more sense for their concerns about the number of regulated qualifications available to be represented and taken into account? We feel that they, rather than Ofqual, have a greater interest and more appropriate expertise in this area. In this instance, a demand-led approach seems more suitable. I look forward to the Minister's response.

Baroness Garden of Frognal: My Lords, we support these amendments. The clause in its original form would unnecessarily and artificially restrict the number of qualifications available, minimising innovation and distorting the market to the detriment of the learner, as noble Lords on the Conservative Benches have pointed out. It is also interesting to note that, while currently there are only approximately 6,600 accredited vocational options, some 50,000 different options are available in higher education, a figure that does not include part-time degrees. One way to avoid confusion in the multiplicity of qualifications might be for the Government to resist the temptation to create new ones. I think of the diploma, for instance, or the introduction of AS-levels. While we welcome the establishment of an independent regulator, we have strong concerns about its independence from the Secretary of State and its ability to interfere in the qualifications marketplace in this way. We support the amendments.

Viscount Eccles: May I express a general worry? The noble Lord, Lord Ramsbotham, who is not in his place, reinforced the point that, if you are the chief executive of a non-departmental public body, you are very conscious of how much independence you have. Your independence can be circumscribed, of course, by a long and complicated Act of Parliament that sets out all sorts of criteria to cover what you should think about and what you should do or not do in certain circumstances; it can also be circumscribed by the ability of the Secretary of State to change the rules in the middle of the game. Given my experiences in non-departmental public bodies, I think that there is too much in this list of instructions. Our recent debates seem to indicate that, if the Minister could find some way of reducing the amount of imperatives contained in these clauses between now and Report, that would be enormously helpful.

Lord Young of Norwood Green: My Lords, the Leitch report on skills in 2006 recommended that we simplify the complex and confusing world of vocational qualifications. Reflecting regular calls from employers for simplification, the Confederation of British Industry, for example, has commented:
	"The skills system is seen by many as an 'alphabet soup'—difficult to navigate, even for highly sophisticated employers".
	I can reassure the noble Lord, Lord Lucas, that these provisions do not seek to reduce choice or innovation; they seek to organise that alphabet soup to make qualifications easier to understand.
	We need to distinguish between two technical terms in the Bill. First, "qualification" is the title of a qualification—for instance, "Level 3 Engineering". Under Clause 126(3)(a), Ofqual must seek to ensure that there is a reasonable level of choice between different qualifications. We want there to be enough qualifications to reflect the range of skills and knowledge that employers and others need. Secondly, the form of a qualification is a particular awarding body's version of that qualification. Under the same provision, Ofqual should seek to ensure that there is a choice between different forms of each qualification—there should be plenty of awarding bodies competing to offer engineering, for example. So there is no attempt to restrict choice or diversity.
	However, Clause 126(3)(b) seeks to avoid the alphabet soup. We do not want a bewildering range of similar titles that are essentially the same qualification, which makes it impossible for people to make a sensible choice. Let me give a generic example of our concerns. If we had separate qualifications called, say, "Practical Engineering", "Engineering for Work", "Engineering for the Workplace" and "Practical Engineering for Today's Workplace", which all seek to achieve much the same thing, then real and informed choice, employer understanding and learner understanding could become impossible. So Ofqual might—I stress "might"—want to make it a condition of recognition that an awarding body offers an engineering qualification and calls it, well, "Engineering", and makes sure that it meets the expectations of engineering employers.
	Clause 126(3)(b) emphatically does not seek to reduce the choice of forms of each qualification. Once Ofqual has established that, for example, "Level 3 Engineering" is the title to go for and sought to get rid of all those meaningless and confusing variations, we want as many awarding bodies as possible to offer that qualification. In that way we will have real competition. That will promote responsiveness and innovation, not fabricated distinctions through title differentiation, which only leave employers and learners confused. So the suggestion in this debate today and in another place that this provision will stifle competition is the opposite of the truth.
	The alphabet soup leads to a market failure. We need Ofqual to have the powers to tackle that market failure and to ensure that—I am sure that the Committee will agree—qualifications meet the needs of employers and learners. The vision of a simple, clear set of qualifications that are responsive to, understood by and meet the needs of employers and learners is a compelling and necessary one for UK plc. These provisions are an important part of the architecture for securing that. These amendments would make it harder to achieve that vision.
	I will pick up a couple of points before I conclude. In reply to the noble Lord, Lord De Mauley, what is meant by "appropriate" or "excessive" will be a judgment for Ofqual to make. The judgment is about qualifications. We want the market to thrive, not just in relation to the titles of those qualifications; it is about rationalising titles, not stifling competition.
	I am not sure that we fully understood the point that the noble Viscount, Lord Eccles, made on the question of Ofqual's powers, but we will endeavour to respond.
	In the light of the explanation, I hope that the noble Lord will feel able to withdraw the amendment. We all share similar goals regarding innovation and composition, but at the same time we want to ensure that people can make a choice without being confused unnecessarily.

Lord Elton: How will the filtering out of the alphabet soup work? The Minister spoke as if a new regulator was coming to the market; in fact, there will be a raft of regulators there already. Is he talking about reducing the span of qualifications offered by a provider or about concertinaing them across providers? There is an important distinction.

Lord Young of Norwood Green: Where the product is essentially the same, we are trying to avoid any duplication of titles that would make it difficult for learners and employers to determine whether that product was significantly different from another product. I have tried to give some examples; I used engineering as a generic example.

Lord Elton: Let me just explain what I mean. It was not clear from the Minister's example whether all these qualifications were offered by one provider or by six or eight providers. It is question of whether you choose between them, harmonise or reduce the number that one of them produces.

Lord Young of Norwood Green: In my experience, it would usually be a number of providers.

Lord Lucas: My Lords, I am grateful for that answer. With regard to changing the nomenclature, I think that the Minister is saying that, if there are 15 things that are essentially level 3 engineering, Ofqual will say, "Call them level 3 engineering; we will not have any fewer of them, but they will all be called the same thing rather than 15 different names". That seems to be immensely sensible, but I cannot see that it is what the clause says. I will have a go at rewriting that.
	My remaining concern is how we deal with innovation. I can see that additional subjects do not create a problem under the scenario set out by the Minister, but what about creating new qualifications? GCSE, for example, now has IGCSE to sit alongside it. Suppose Bedales came along with the qualifications that it has successfully developed, which are like GCSE but have a much higher practical content. Is Ofqual going to have the ability to say, "No, we've got enough qualifications for candidates taking GCSE. We're not going to allow you to have another one. It's different. We don't want more qualifications at this stage of education"? Are we giving it that power? Or, because the new qualification is different, does Ofqual have to allow it?

Lord Young of Norwood Green: As I have said, the intention is not to stifle innovation. If a genuinely new product was being offered, why would Ofqual not want to encourage it? I assure the noble Lord that the objectives are to encourage innovation and efficiency.

Lord Lucas: That is very helpful. I will craft my amendments on Report accordingly. I beg leave to withdraw the amendment.
	Amendment 238 withdrawn.
	Amendment 239
	 Moved by Baroness Walmsley
	239: Clause 126, page 77, line 12, at end insert—
	"( ) information provided by recognised awarding bodies;"

Baroness Walmsley: My Lords, I shall speak also to Amendments 245, 246, 247, 252, 253, 258 and 259. We have been asked to lay these two groups of probing amendments by the Assessment and Qualifications Alliance, on behalf of some of the awarding bodies, to probe what opportunity they will have to be involved in the work of the regulator and make the valuable contribution that they are willing and able to make. They have substantial expertise and practical knowledge and they welcome the collaborative approach already demonstrated by Ofqual. However, our first group of amendments refers to the fact that they would like to see in the Bill a requirement that that they be consulted where appropriate so that they can continue to make that contribution.
	Amendment 239 would require Ofqual to have regard to information provided by awarding bodies. Amendment 247 is a similar amendment, requiring Ofqual to consult awarding bodies before setting or revising general conditions of recognition. Amendment 253 would require Ofqual to consult awarding bodies before setting or revising the criteria for accreditation. Amendment 258 would require similar consultation when setting or revising criteria for a number of hours of guided learning.
	It is also essential that the awarding bodies are treated fairly. Another set of amendments in this group tries to ensure that. Amendment 245 would require that, if Ofqual refused an application for recognition, it must provide the awarding body with a statement setting out the reasons for its decision—in other words, a kind of feedback. Apart from the desirability of this in the interests of transparency, which is very important, it seems only fair, since the financial consequences of such a refusal to an awarding body may be great. It would give it the opportunity to have its views heard and to rectify the problem and come back later.
	Amendment 246 relates to Clause 130, about how Ofqual sets the criteria for recognition. Subsection (5) states that Ofqual must consult,
	"such persons as it considers appropriate".
	It seems unlikely that it would not consider awarding bodies as appropriate, but, just to be sure, we are proposing this amendment.
	Amendment 252 asks for a review of a decision to refuse accreditation if the applicant requests it. It may be that additional information that could be provided by the awarding body to Ofqual would change the picture completely. The ability to ask for a review would make sense.
	Amendment 259 is the last of our amendments in this group. It would replace Clause 143 with a different clause, relating to the review of the activities of recognised awarding bodies. The change that we have proposed would ensure that such activities were only those that directly and materially impacted on the fair operation of the qualification system or the credibility of the awarding body. It seems to me that these are the only activities that Ofqual has any business to look into. Clause 143 refers to "connected activities". What does this mean? Does it include only activities carried out in the UK, or would Ofqual want to look at activities carried out in other parts of the world, because many of the bodies operate not just in this country but elsewhere? I hope that the Minister can give me some answers to those questions. I beg to move.

Baroness Verma: My Lords, we agree with the noble Baroness, Lady Walmsley, that it is important for Ofqual to consult the recognised awarding bodies that it regulates on changes to relevant criteria. However, has the noble Baroness or the Minister given much thought to the fact that the most important people to consult should be the users of qualifications? Employers, universities and colleges, for example, are the principal consumers of these qualifications and so their views should be taken into account.
	Amendment 254 would place on Ofqual a duty to make a saving or transitional provision if a qualification ceased to have effect. It seems remarkably sensible that this should be a duty and not just a power. Can the Minister perhaps give us an example of when it would not be appropriate for Ofqual to provide this transitional provision if a qualification ceased to have effect? Can he also inform the Committee what would happen if a qualification ceased to have effect and students were left midway through an assessment process that no longer existed? I look forward to the Minister's response.

Lord Young of Norwood Green: My Lords, this is another group of amendments that get right down to the detail of how Ofqual does its business. In most cases, we feel that these amendments are unnecessary, not because Ofqual should not be doing most of the things that it is set out to do, as I hasten to assure the noble Baroness, Lady Walmsley, but because it does not need to be told in the Bill to do those things. As with any Bill, we cannot cover every eventuality; we have to rely on the organisations concerned to act reasonably, backed up if necessary by public law principles and the courts. If, for example, Ofqual failed to consult any awarding bodies on changes to recognition criteria that impacted on them, it could be at risk of successful challenge.
	We are fortunate in this country to have awarding bodies whose expertise in assessment and qualifications dates back, in some cases, well over a century, as the noble Baroness, Lady Garden, knows, and which are recognised internationally. Of course, Ofqual will need to recognise and call upon this expertise. Against this background, requiring Ofqual to have regard to information provided by recognised awarding bodies, as Amendment 239 does, may sound unexceptional. But it would make for quite the wrong relationship for a regulator to have with those it regulates. Ofqual needs to be a transparent, listening regulator, ready to learn and ready to work co-operatively with awarding bodies, but it needs to be detached enough from awarding bodies to regulate them robustly where necessary.
	The Clause 143 power to keep under review activities by awarding bodies that are "connected matters" is an essential part of its toolkit. Here I respond to one of the questions asked by the noble Baroness, Lady Walmsley. It will allow Ofqual to monitor any other activities which may, for example, impact on the credibility of the qualifications offered or the effective or fair operation of the system. It allows Ofqual to look at things such as any awarding activities overseas or in the unregulated market in the UK in relation to qualifications that are similar to those that Ofqual is regulating. For example, if a body is offering overseas qualifications that are similar to those that Ofqual is regulating, that may have a bearing on the credibility of the regulated qualifications. For example, in the European market, where workers have the right to move around, if they come to the UK with a qualification we would expect that qualification to have the same integrity and quality as the qualification offered in the UK.
	There may be conflicts of interest. If an awarding body were insisting, say—and this is a connected activity—that those studying for its qualifications must use particular text books, then Ofqual should be able to do something about it. It is not an unduly broad power; a connected activity needs to be relevant to the awarding body's recognition or a regulated qualification. Ofqual can use this power only to meet its objectives and in ways consistent with its general duties. We know that some awarding bodies have expressed concerns about these powers, and have suggested that they are very broad, which we do not believe they are. In any case, sometimes regulators have to be able to do things which those they regulate do not like: Ofqual's primary focus should be the needs of the learner, not the awarding bodies. Were we to make this amendment, we may yet regret the impact on the learner of constraining Ofqual's ability to be a robust and effective regulator.
	Amendment 259 would narrow Ofqual's scope, so there is a judgment to be made as to how strong a regulator we really want Ofqual to be. If there were an activity Ofqual was concerned about, that activity would have to pass the "directly and materially" test before Ofqual could even start investigating. An unscrupulous awarding body could use that to keep Ofqual away from any activities which it would rather the regulator did not know about. That could risk damage to the qualifications system, which I am sure we would all want to avoid.
	On the review, any decision to refuse an application for recognition or accreditation should be subject to a formal review. If Ofqual refuses an application for recognition it must provide the awarding body with a statement setting out the reasons for its decision, but there is no requirement for a formal review process. In contrast, in the case of Ofqual withdrawing recognition, it must establish arrangements for a review, as set out in Clause 145. In practice, I imagine that Ofqual may well want to put in place review arrangements to prevent any dispute going straight to the courts. We should not be legislating unless we need to, and here we do not need to.
	On the question of cessation of qualifications, which concerned the noble Baroness, Lady Verma, I will have to write to her. I understand her concern. One would like to think that it would not happen, but we will deal with what would happen in the event that it did.
	I hope, with that explanation and those assurances, that the noble Baroness, Lady Walmsley, will feel capable of withdrawing her amendment.

Baroness Walmsley: I thank the Minister for his reply. I am now clearer about the arrangements for statements and reviews, and much more satisfied than I was.
	On similar qualifications that come from Europe, for example, there is already a system for comparing such qualifications. I cannot remember what it is called, but lots of arguments go on as to whether various qualifications are comparable; so that is already done. I therefore do not think that Ofqual would need to look into that sort of thing.
	Finally, it is a little sad that the Minister feels that if Ofqual has to consult awarding bodies, it will become their puppet. I have met Kathleen Tattersall and she is nobody's puppet, and I do not think that she is going to be, either. I really do not think that that will happen. Clearly, however, the Minister feels that it would put the wrong sort of gloss on the relationship between Ofqual and awarding bodies, so I will have to think more carefully about what he has said before deciding whether to press those matters.

Lord Lucas: Before the noble Baroness withdraws her amendment, can I just pick up on that question of comparable qualifications? Presumably the Minister means whether some awarding bodies—IGCSEs—are devaluing the reputation of GCSEs and therefore need to be looked at. If that is the case, will he give me an assurance that Ofqual will be encouraged to accept the idea that it should accredit IGCSEs and international A-levels in order that it should have a hand on the quality of the brand internationally?

Lord Young of Norwood Green: I am being advised that to go there could be a career-limiting move. I think that that is right, and so will have to pass on that particular invitation.

Baroness Walmsley: I beg leave to withdraw the amendment.
	Amendment 239 withdrawn.
	Amendment 240
	 Moved by Lord Lucas
	240: Clause 126, page 77, line 15, leave out paragraph (h)

Lord Lucas: My Lords, the amendment essentially covers key stage examinations. I have had a helpful reply, as usual, from the Minister during the holiday, for which I am grateful, but I wanted to ask a couple of questions to follow up on it.
	My understanding of the position now is that although the Secretary of State will set out the objectives of key stage examinations, everything to do with their quality—whether the examinations are up to scratch, whether they are maintaining standards, everything like that—will be under the care of Ofqual. Secondly, given that we have moved to that sort of regime, will the Government now encourage competition for the provision of these examinations, as we do with every other examination in schools? I beg to move.

Baroness Garden of Frognal: My Lords, we have tabled Amendment 264 in this group. This amendment continues our general concern that Ofqual should remain independent and be seen to be independent. In Clause 154, on the review of regulated assessment arrangements, Ofqual is tasked with keeping under review aspects of NC and EYFS assessment arrangements. We would add that reporting its conclusions must be conducted in such a way that it shall not be bound to have regard to government policies in the assessment arrangements. We feel that if that clause was added it would reinforce the independence of Ofqual.

Baroness Morgan of Drefelin: My Lords, I will do my best here. I will speak also to some government amendments which are rather technical, so the last part of my speech might not be very inspiring. I start by setting out the responsibilities for regulated assessment, such as the national curriculum tests and the early years foundation stage profile. The purposes of these assessments, as noble Lords are aware, are set out in legislation in the Education Act 2002 and the Childcare Act 2006—namely to ascertain what pupils and children have achieved in relation to the attainment targets for the relevant stage or the early learning goals.
	The Bill gives the Secretary of State the power to specify additional purposes. Under the legislation it is for the Secretary of State to decide how those purposes are to be delivered; for example, what subjects should be assessed, when and how? That is a policy decision, delivered through statutory orders. The Secretary of State will in future be required to consult Ofqual before making an order, which I am sure the Committee will think is right. It is crucial, however, that the delivery of assessments is not done directly by Ministers or the department. We cannot have, I am sure the Committee will agree, Ministers being responsible for decisions about such matters as marking or where grade boundaries should be. Normally we would expect Ministers to ask which QCDA will be their delivery agent for assessment, so that the QCDA does the delivery. As an aside, I should report that after the problems with the national curriculum tests, which I thought we might be discussing now, more than 999 out of every 1,000 test results were delivered on time this year, which has to be good news. I take the opportunity to congratulate QCA on such a successful performance.
	Ofqual's role is to regulate assessments in the context of this policy and delivery framework. In particular, it will set the regulatory framework to which those designing and delivering assessment arrangements must have regard. It will check and report on whether the assessments that are designed are fit for the purposes set out by the Secretary of State and monitor, as the noble Lord, Lord Lucas, says, the maintenance of standards. If Ofqual does not like what it sees as it monitors, it can—and I am sure it will—say so to Parliament. Like a referee, Ofqual needs to know the rules of the game that it is enforcing and, like a referee, Ofqual must be free to enforce those rules. However, just as it is not a referee's job to rewrite the rules, it is not Ofqual's job to comment on the purposes of the assessments. Those are policy issues for which Ministers are accountable. Interim Ofqual has made very clear its view that Ofqual should not have a policy role. We do not want a situation in which Ofqual could come up with an alternative policy—even though it has no mandate, no power and no accountability for doing so—and comment on that, rather than focus on maintaining standards in the assessments, as the Committee has made clear is important, and which is what its role should be.
	Let me be clear that the clause does not constrain Ofqual's independence in any way. Ofqual will be free to regulate as it sees fit. The information it collects to make its judgments, whether those judgments are favourable or not, how it makes known its views, and all other regulatory matters, are entirely for Ofqual to decide. It will be for Ofqual alone, through its regulatory framework, to set out how it expects standards to be maintained, and to monitor and report on those standards, given its assessments and standards objectives.
	The noble Lord, Lord Lucas, asked a question about Ofqual. As I said, Ofqual sets a framework for standards and the QCDA delivers. I apologise for repeating myself. In the light of that explanation, I hope the noble Lord will feel able not to press his amendments.
	I want to say a few words about the government amendments tabled in my name. I am afraid that they are a bit technical. Schedule 12, the minor and consequential amendments schedule, contains minor changes to the legislation covering the national curriculum and early years assessments to help the system work effectively. One of those changes is to the way in which the so-called supplementary provisions are produced. That is a lengthy document which sets out all the detail of how assessments have to be delivered to ensure that the tests are run fairly and effectively, covering everything down to the national curriculum test papers, how they should be scored, when they can be opened and the test results. The provisions in Schedule 12 allow the Secretary of State to delegate the production of these supplementary provisions if he judges that that is the best way of delivering assessments effectively.
	We have discovered a technical problem with the provisions. Inadvertently, the wording of the amendments restricted the scope of what these supplementary provisions can cover—I refer to the amendments originally being made to the Bill and not the ones we have tabled now—the result of which was that all the minutiae of the detailed arrangements would have to be put in statutory orders, which, as my note tells me, "is just daft". We need to put this right by moving a few words in the new provisions from the end of the sentence nearer to the beginning. I apologise for having to table these technical amendments and for speaking to them less eloquently than I should.
	I hope that my comments have been helpful and that the noble Lord feels able to withdraw the amendment.

Lord Lucas: My Lords, I am very grateful for that amendment. The only point that the noble Baroness did not answer—whether we will go for competition in the provision of key stage examinations et cetera—we shall come to again later when I shall try to demolish the QCDA with the same abandon as this Government tried to abolish the office of Lord Chancellor. That power of the QCDA could suddenly reappear, which may not be entirely desirable. I beg leave to withdraw the amendment.
	Amendment 240 withdrawn.
	Amendment 240A
	 Moved by Baroness O'Neill of Bengarve
	240A: Clause 126, page 77, line 15, at end insert—
	"( ) the need to ensure that there are sufficient regulated qualifications to assess the National Curriculum and other QCDA curricula."

Baroness O'Neill of Bengarve: My Lords, I speak to Amendment 240A, tabled in my name and those of other noble Lords, together with Amendment 255A, which is an amendment to Clause 138. The two amendments are linked, but I shall say more about the second. They may appear to be rather limited, but they bear on fundamental questions of the independence of the regulation of assessments for regulated qualifications and thereby on the public reputation of those qualifications.
	We all know that beyond these discussions today there is a raging public debate on the question of standards. It is very unclear how the provisions that we are now considering relate to that debate about standards. I want to say a little bit about that.
	Amendment 240A specifies that in performing its functions Ofqual should have regard to the need to ensure that there are sufficient regulated qualifications to assess the national curriculum and other QCDA curricula. It goes beyond the duty to ensure that the number of regulated qualifications is appropriate, which we have already discussed to some degree. This is not a matter of the number; it is a matter of the regulated qualifications having the right sort of connection to the national curriculum and QCDA qualifications. I suspect that if I withdraw this amendment and bring it back on Report, I will try to cover the case of non-QCDA qualifications.
	The point of the amendment is to establish a duty for Ofqual, the regulator responsible for the standards of assessment of regulated qualifications, to ensure that enough appropriate examinations are provided. The amendment explicitly links Ofqual duties to QCDA curricula. I fancy, though I cannot be sure, that it is the lack of an adequate way of making that connection in the Bill that has led to the introduction of Clause 138, which empowers the Secretary of State to reach in to the supposedly independent regulator.
	On Amendment 255A, Clause 138(1) provides:
	"The Secretary of State may make a determination specifying minimum requirements in respect of a specified qualification, or description of qualification".
	Like many other noble Lords, I believe that as drafted this power runs dangerously wide and risks undermining the very independence that is sought for Ofqual and thereby also its public reputation as guardian of standards for regulated qualifications. It has been suggested that a power to set minimum requirements will not be risky because it is not a power to set minimum standards. I believe that, as a verbal matter, that is correct: requirements are distinct from standards. However, I do not believe that even specifying requirements should be a matter for the Secretary of State to determine, even if is it done transparently.
	The issue of standards is very serious, but it cannot be addressed by giving the Secretary of State reach-in powers. In setting requirements, unfortunately, it is all too easy to alter standards. Of course, we can all give examples of cases where requirements are altered without substantially altering standards. Substituting one set text for another set text in an examination where the texts are clearly of roughly equivalent difficulty might be an example of altering a requirement without altering a standard. However, there are many other ways of altering requirements that do alter standards—for example, requiring that some additional subject matter or skill be examined or not examined. Some changes in requirements raise standards in some respects but lower them in other respects. Clause 138 creates far too wide a power for the Secretary of State to reach in to alter requirements in a way that will leave the Secretary of State altering standards.
	Amendment 255A would circumscribe that power by requiring that it can be exercised only provided that Ofqual reports that it does not affect standards. In effect, it gives the power to determine whether standards are altered to Ofqual. The amendment is closely related to, but rather stronger than, Amendment 255B tabled by the Opposition, which provides that the power be exercised only if Ofqual reports that this does not lower standards. Amendment 255B still risks Ofqual's independence and reputation, because it allows the Secretary of State to make determinations that in his or her judgment will raise standards. That power should not be vested in the Secretary of State, in view of the difficulty in judging what raises and what lowers which standards.
	I recognise that Amendments 255A and 255B are much weaker than the Liberal Democrats' intention to oppose Clause 138 standing part of the Bill, thereby eliminating any power for the Secretary of State to make determinations specifying minimum requirements and limiting his or her power to reach in to alter or raise standards.
	There is more than one way of skinning this cat, but it needs skinning. The power in Clause 138 is far too widely drafted. It undermines Ofqual's independence—and the independence of Ofqual is the primary purpose of this part of the Bill, as is the separation of Ofqual from QCDA. By undermining Ofqual's independence, the clause also risks its reputation. I beg to move.

Viscount Eccles: After that masterly description of the issues raised by Clause 138, I hesitate to go into any detail. I found myself nodding at all the arguments made by the noble Baroness, Lady O'Neill. My proposal is somewhat different from striking out the clause or some of the other amendments; it is to start by questioning why the Government have selected a determination as their way to proceed. My amendment proposes to remove the use of an unusual power—the power of determination—and to replace it with a conventional power to lay regulations. It would be even more suitable if the procedure on the regulations were to be affirmative rather than negative.
	I tabled my Amendment 255 because determinations are of questionable constitutional impact and are subject to no parliamentary procedure. As has been said entirely correctly, Clause 138 contains an important and wide power. It is entirely appropriate that, if it were to be exercised, it should be subject to proper parliamentary scrutiny. I do not know why the Government should wish to take shelter behind a determination when specifying minimum qualifications. This matter needs to be dealt with in an open and transparent way.

Lord Bew: My Lords, I support Amendment 240A and shall speak on Amendment 255A in my name. Like my noble friend Lady O'Neill, I should like to link those amendments, because there is a consistency in the arguments that we advance. I can understand and anticipate a view by the Government that the words that we wish to add under Amendment 240A defining the functions of Ofqual are unnecessary and that these functions are denoted in other clauses. I even noticed that Ofqual's formal publication states:
	"The Bill defines Ofqual's future powers to allow us to challenge awarding, and other, organisations at a strategic level. It will empower us to keep under review all aspects of National Curriculum and Early Years Foundation Stage assessment arrangements and to secure the efficient provision of regulated qualifications".
	I understand in principle how the Government might feel that we are proposing something that is already covered in the Bill. However, let us fast forward to the dreaded Clause 138, the "Dictator Clause", and to the defence offered by the Government in the Explanatory Notes:
	"This clause allows the Secretary of State to determine the minimum requirements in respect of skills, knowledge, or understanding that someone must be able to demonstrate to gain a particular qualification or a qualification of a particular description (a term explained in paragraph 392 above). For example, it could be used to ensure that the content of GCSEs properly reflects the NC Key Stage 4 Programmes of Study, which they are intended to assess".
	On the one hand, the Government may argue that this is already covered, that the functions of Ofqual are clearly defined and that what we are proposing is unnecessary. On the other hand, and with another voice, they seem to be suggesting that there is a question mark over how the functions of Ofqual might operate, which in turn justifies the position taken in Clause 138 on the role of the Secretary of State.
	I respect and understand the position of noble Lords who say that there is no need for that role for the Secretary of State; I see fully the force of their argument. However, it is not an argument that I wish to advance. My argument accepts in principle the Government's contention that there may be circumstances in which the residual capacity is required. If that is so, it is vital that it be circumscribed correctly, to avoid what we all wish to avoid—the impression that Ofqual is not an independent body. That is at the heart of the matter and of this discussion.
	I will make two further comments. I support the words of the noble Baroness, Lady O'Neill. When I look around, I see other academics in the Chamber. As academics, we have difficulty with the contention that you can make a distinction between the requirements and the standards of a course and with the suggestion that the Secretary of State can reach in to affect requirements but not standards. In the real world of the classroom and the lecture theatre, these things are intermingled so intimately that it is not a real or viable distinction. In so far as the Government's case depends on that distinction, it is not viable. At the simplest level—and these are the best examples that you can give—you could take out one Shakespeare tragedy and replace it with another, or replace one Dickens novel with another from the same sub-genre of novels. However, between "Hamlet" and "Othello" there is a vastly differing critical literature. It is very difficult to play around with the requirements for a course and not to touch the standards. That part of the Government's argument is weak, although I accept that in certain circumstances the Secretary of State, who is responsible to Parliament, may require residual powers.
	As the noble Baroness, Lady O'Neill, said, we have chosen our language carefully. In the formula that we use about affecting standards and not lowering them, we wish to avoid any connection with the wider debate on standards. Important things have been said on both sides of the Committee this afternoon and I am certain that the House will address this vital public question on other occasions. I do not wish to be understood as saying that I have no concern about the issue of standards. However, that is not the question under the microscope at this moment and we would muddy the waters if we allowed the standards debate to infect the terms of the discussion about the clause. That is why we have chosen the language that we have.
	In conclusion, I say to the Government that we are anxious to find a compromise in which the central intention that Ofqual should be seen by the public to be an independent body—an intention accepted on all sides of the Committee—is preserved.

Lord Elton: My Lords, on behalf of my noble friend Lady Perry, whose absence we all understand, I wish to speak very briefly to her Amendment 257 and to say, as is evident, that it is designed simply to ensure that, when a determination is made, the providing body shall have reasonable time in which to prepare itself to comply with it. It is a practical matter with which I hope the Government will sympathise.

Lord De Mauley: My Lords, throughout these debates we have made our intentions with regard to Ofqual perfectly clear. We welcome its creation as an independent body to regulate our examination standards. I shall not repeat the debate that we had earlier regarding the sad state of falling exam standards and, consequently, the public's lack of faith in Ministers, who claim, in defiance of the evidence, that standards are consistently rising.
	The independence of Ofqual is essential. However, we on these Benches believe that it is necessary for the Secretary of State to be able to issue minimum requirements for standards, provided he cannot lower them. I listened carefully to what the noble Baroness, Lady O'Neill, the noble Lord, Lord Bew, and other noble Lords said, and I have great respect for their arguments. This is a very complicated area. Our argument is that the Secretary of State is accountable to the public and must surely be able to respond to their concerns regarding declining standards.
	The powers in Clause 138 as drafted allow the Secretary of State only to issue "minimum" requirements and so set a baseline. That will not prevent Ofqual exercising its regulatory powers but will allow the Secretary of State to deliver on his promises and to respond, if he judges it necessary, to the concerns of the public. As the figure accountable to Parliament and to the public for the standards of education in the country, it seems to us desirable that he has the authority to do this.
	Of course, we acknowledge that transparency is of the utmost importance in the use of this power. Furthermore, the Secretary of State should only be allowed to set these minimum standards of Ofqual's criteria; he should not meddle in Ofqual's regulatory functions—for example, as was mentioned by the Minister in the previous grouping, in the area of grade boundaries.
	Therefore, we have tabled Amendment 255B, which would mean that the Secretary of State could intervene to set minimum standards only if Ofqual reported that for him to do so would not lower standards. In other words, Ofqual would effectively have a veto over the Secretary of State's demands if it considered that his minimum criteria would cause standards to fall. This is clearly a simple adaptation of Amendment 255A, which would allow Ofqual the flexibility not to accept the Secretary of State's designated minimum standards if it felt that that would affect standards at all.
	With respect to the noble Lords who have tabled Amendment 255A, we propose our drafting because it would not stop the Secretary of State raising minimum standards, which indeed the Government's current drafting of Clause 138(1) already allows, but our amendment would allow Ofqual to exercise its freedom not to obey the Secretary of State's demands in the event that it felt that these would lower standards. Therefore, it would reduce the scope of the Secretary of State's power in relation to Clause 138 as drafted.
	I very much hope that this alternative can at least be taken into account in the consideration of this clause and I look forward to hearing the Minister's views.

Baroness Walmsley: My Lords, I very much agree with the arguments made by the noble Baroness, Lady O'Neill, and I support her amendment, although I could not really choose between that and the drafting of the Conservatives' amendment. However, frankly I do not think that it goes far enough. As the noble Baroness made very clear, her Amendment 255A refers only to standards but, as she pointed out, substituting one set text for another may not alter standards, so they would not be affected by her amendment. However, the idea that a Secretary of State could specify Shakespeare and Dickens rather than Austen and Auden fills me with horror. Therefore, I suggest to your Lordships that Clause 138 should not stand part of the Bill, and I do so for three reasons. First, if Ofqual is set up properly it should be unnecessary; secondly, it could be educationally damaging; and thirdly, its presence undermines one of the key objectives of Ofqual, which is to restore public confidence in qualifications.
	I shall quote, if I may, from a letter from the Minister in another place, Sarah McCarthy-Fry, to the chief executive of Cambridge Assessment. She explained that, under current legislation—Section 26(1)(a) of the Education Act 1997—Ministers had powers to influence the then QCA in several ways and could, if they chose,
	"get involved in detailed regulatory decisions about grading, assessment or standards".
	She went on to say that this was a bad idea and would change under this Bill, which, as she pointed out, has no equivalent of Section 26(1)(a). She believes that ministerial influence over Ofqual is very carefully circumscribed. However, her justification for Clause 138 was that the Government have a legitimate interest in qualifications because qualifications taken at 16 assess the national curriculum.
	I contend that the Government use that influence through their powers over the QCDA, which researches and develops the national curriculum. It is then up to Ofqual independently to ensure that the awarding bodies assess and grade children's achievements properly and fairly. Further down the letter the Minister contended that,
	"a Clause 138 determination would normally only be issued where, for some reason, Ofqual refused to adopt draft criteria containing knowledge, skills or understanding that the Secretary of State believed were important".
	That is so far-fetched a reason that should such a Secretary of State exist he or she should be drummed out of office, let alone be listened to.
	In his reply Mr Simon Lebus went to great lengths to explain to the Minister how the examination system works. His rebuttal of her contention is thorough and I will not detain your Lordships with all of it. Suffice it to say that he laid out, using the model of what happened over the development of the new diplomas, the reasons why, in order to exert his influence, the Minister would have had to produce several determinations over a long period during which new information about the diplomas became available. That is because, over a period of about 12 months, the Government kept changing their mind about what diplomas would be all about. So the idea that these would be used only in exceptional circumstances falls by the wayside.
	Secondly, Mr Lebus contended that the indicative determination describes the design criteria for the diploma, not the subject criteria. The Explanatory Notes, however are clear that Clause 138,
	"restricts the Secretary of State to specifying minimum requirements relating, in effect, to the content of a qualification".
	The impact of determinations relating to "knowledge, skills and understanding" are not so different from design criteria for assessment, as he implied. An example is, if a minimum requirement is that all must know mental arithmetic, the Secretary of State creating a paper in which calculators cannot be used. The clause does not allow him to reference other qualifications as examples of minimum content. To quote Mr Lebus again:
	"Apart from anything else the content of those qualifications changes over time and, indeed, may be changing as a result of Ofqual/QCDA action even as the Secretary of State determines something else".
	In other words, we have a changing landscape. As a former science teacher I can assure your Lordships that I would no longer feel confident about teaching today's young science students, as the knowledge base of science has changed so much since my day, so Mr Lebus makes a very good point. The Minister commented earlier about sitting science A-levels, so I am sure she would agree.
	This part of the Bill stemmed from a White Paper that pointed out the lack of public confidence, which stemmed from a perception that standards are not being maintained, partly because Ministers were meddling. In another place it became clear that there is overwhelming cross-party support for unequivocal Ofqual autonomy and accountability. These points were made time and again and several votes were taken. In a survey 90 per cent of MPs agreed that a regulator should have a duty to report key decisions to Parliament, that Parliament should play a key role in ensuring that regulators operate independently from government, and that parliamentary scrutiny is critical to ensuring that regulators are accountable and transparent. If the Government accept some of our amendments, all that can be achieved; but if they insist on Clause 138 remaining in the Bill, they will undermine all the good they are otherwise doing.

Baroness O'Neill of Bengarve: The point of Amendment 240A is to achieve exactly what the noble Baroness, Lady Walmsley, suggested. Ministers should indeed have responsibility for what is taught. Through the QCDA, they have it. That is the route of ministerial influence. They should not be put in a conflict of interest where they both determine the curriculum and then run around and alter the assessments. To keep the examination system clean from that sort of influence, it seems necessary to have, at most, a very restricted power to alter requirements that Ofqual can assure the public will not alter the standards. Ministers can still affect the standards.

Lord Lucas: My Lords, I start from the same position as the noble Baroness, Lady Walmsley: the paramount requirement is that Ofqual should be independent and be seen to be independent, so the best thing would be to delete the clause, especially as I am entirely unconvinced by the example given by the Government in their Explanatory Memorandum. As the noble Baroness said, if the Bill is properly designed, how can qualifications not reflect the national curriculum? How can the sort of problem illustrated in paragraph 414 of the Explanatory Notes ever occur?
	We may need the amendments tabled by the noble Lord, Lord Bew. In that case, let us have them, but there is the question of the design of the rest of the Bill. The Minister has a lot of influence. As has been pointed out several times, he has influence over what the curriculum is to be. If my amendments were accepted, he would have total control over what are the curriculum was to be. We will argue that when we come to it. He has a great deal of control over what examinations are offered in state schools, because he can veto the funding of any examination. He can just say, "This does not meet the standards, we will not allow this. Go away, Edexcel, your English is not good enough". He has an ultimate veto on whether any examination goes through. Given that level of power, how can any Minister worth their salt not be able to get what they want through quiet conversation with Ofqual and the examination bodies? What examination body will pursue a qualification that it knows will not be funded at the end of the day? That would be a total waste of money. The powers that the Government need are all there.
	I recognise that in achieving anything in the Bill I am up against the obstacle that my Front Bench does not agree with me. My noble friend did not make clear what sort of use of the power in Clause 138 he would intend, should he get into government. That would help us a lot in deciding where Clause 138 should go. I do not think that he is backing the illustration used by the Government; he must have some sensible thought in his head. I very much hope that he will share it with us.
	Given that we are to go down the route of not deleting Clause 138, I return to the amendment tabled by my noble friend Lord Eccles. If Clause 138 is to be in the Bill, it is essential that its use be totally transparent and public, and the provision must be made through an affirmative resolution rather than a determination published merely at the whim of the Secretary of State. He may give us a promise, but the next one may choose to do otherwise. That is entirely unsatisfactory for public confidence. If we are to founder on the rock of my noble friend's determination not to join us in opposing Clause 138, I very much hope that we can convince him and those on the Liberal Democrat Benches to support my noble friend Lord Eccles.

Lord De Mauley: My Lords, when my noble friend Lady Verma spoke so compellingly on the group including Amendment 230, she referred to a couple of very specific examples where our amendment might have prevented problems. The intervention of Ofqual in 2008 to force the AQA to lower the pass mark for its GCSE science paper to 20 per cent is one example. That suggests to us that it is helpful for the Secretary of State to have this backstop power.

Lord Lucas: Yes, but I cannot construe a determination within the wording of Clause 138 that would have an effect in the circumstances that my noble friend outlines.

Baroness Morgan of Drefelin: My Lords, the noble Viscount, Lord Eccles, had it right when he described the noble Baroness, Lady O'Neill, as setting out masterfully the challenges and issues around Clause 138, showing the importance of this debate. I have listened carefully and with great interest to all contributions, and I shall think very carefully about all the points raised.
	The noble Viscount, Lord Eccles, spoke about determinations and regulation. We do not agree that it is necessary to require that a Clause 138 determination is made by regulations, as his amendment insists. There are enough safeguards already to prevent an inappropriate determination, notably the importance of transparency, which has been built into the clause. If Parliament wanted a Secretary of State to account for a Clause 138 determination, it could always, as it does, haul him or her in front of the Select Committee. That is the benefit of transparency.
	Noble Lords made many more points about this important clause in this debate. I am particularly keen to help skin as many cats as appropriate, if I can, but I firmly believe that not only is Clause 138 consistent with Ofqual's independence, but it actively supports it. Where QCDA and Ofqual have failed to agree on qualifications criteria—that is an important point and maybe we have not emphasised it enough—it allows the Secretary of State to require some aspects of the qualification to be delivered. By that, I mean something like minimum knowledge, skills or understanding. However, the Secretary of State should not be able to change aspects of qualifications that are central to the maintenance of standards. That is why Clause 138 prevents Ministers saying anything about assessment, grading or standards. Without Clause 138, those aspects of qualifications would not be ring-fenced for Ofqual. However, I acknowledge that we have not yet been able to convince your Lordships that Clause 138 sits coherently with Ofqual's independence. I have heard the remark, "We are not about marking our own homework" so many times, and we will come on to much more of that when we talk about QCDA.
	I want to reassure the Committee that we will reflect very carefully on today's debate. There are two areas we will need to look at in particular. The first is standards. A Secretary of State could influence standards through Clause 138 by, for example, requiring the Mr Men to be part of an A-level, but the transparency that Clause 138 provides will militate against him seeking to do that. However, in the light of the debate, we will consider whether transparency is sufficient protection or whether we need something more in the Bill. The second is how we expect Clause 138 to be used, which is only when something has gone wrong with the process of developing criteria between QCDA and Ofqual. We shall reflect on whether we could do something to make that clearer in the Bill. It is not our intention that the Secretary of State should use this power whenever he or she chooses. It should be very much curtailed.
	I thank noble Lords for the time that they very generously gave me through the Recess to talk further about the detail of the amendments. In particular, I was very interested in the analysis which the noble Baroness, Lady O'Neill of Bengarve, presented with her linked amendments and the perspective that the noble Lord, Lord Bew, presented to us. I was also very interested to hear the remarks of the noble Lord, Lord De Mauley, and the exchange between him and the noble Lord, Lord Lucas.
	The noble Lord, Lord Elton, asked again about timeliness. I am a little unsure whether I have the right advice to be able to respond to him properly, but I have a note to tell me that it will be up to Ofqual to decide when to implement it—I presume that "it" means a determination. Hence, Ofqual cannot be directed to implement this at a pace at which it feels uncomfortable. I will have to read Hansard and look slightly more carefully at this.
	We have to get the balance right. I am very concerned to hear the phrase describing the Secretary of State as "reaching into" the independence of Ofqual. That is not something that I would wish to promote. I certainly would not wish to see Clause 138 used as a device to do that. With those reassurances and a commitment to further discussion and work between now and Report, which will be a busy time, I hope the noble Baroness will consider withdrawing her amendment.

Baroness O'Neill of Bengarve: My Lords, I thank the Minister for listening so very well. She has listened to a number of concerns that come from slightly different directions but that all bear on Clause 138. I hope very much that we can find ways in which the powers conferred on the Secretary of State by the clause are circumscribed in ways that eliminate risks. If we cannot, I suspect that our colleagues will say that the clause should not stand part, so there is a challenge for all of us in the next two weeks. I beg leave to withdraw the amendment.
	Amendment 240A withdrawn.
	Amendments 241 to 243 not moved.
	House resumed.

House adjourned at 7.08 pm.